Last Friday, the Argentine government appeared before the Inter-American Commission on Human Rights (IACHR) to defend changes to the Media Law made by President Mauricio Macri in the weeks after he took office.
The hearing before the IACHR had been requested in January by a number of media-related organisations including universities, cooperatives, community media, and unions, many of them under the umbrella of the Coalition for a Democratic Communication, and was headed by the Centre for Legal and Social Studies (CELS).
During the hearing, representatives from these organisations expressed their concerns regarding the changes introduced to the legislation and their impact on the media landscape – and, by extension, on freedom of expression.
They also questioned the way the law — which had been widely debated before being approved by Congress — was modified, via a number of decrees unilaterally signed by the President. Just two days before the hearing, the Lower House of Congress ratified the decrees changing the 2009 law in a special session.
The first decree, 13/2015, published in the Official Gazette on the day Macri took office, 10th December 2015, established that the entities in charge of applying the Media Law (26,522) and the Telecommunications Law (27,078), AFSCA and AFTIC respectively, would now report to the newly created Communications Ministry. The second, 236/2015 (from 22nd December), ordered the intervention of AFSCA and AFTIC for 180 days, removing their directors and boards. In the case of the higher-profile AFSCA, where director Martín Sabbatella refused to leave, the offices were evacuated by police on Christmas eve while protesters gathered outside.
Both decrees contradicted the Media Law and the international standards set out, among others, by the IACHR itself, which establish that the organisation in charge of applying the law should be autonomous from the political and economic powers. They also ignored the procedures specified in the law for the removal of the relevant authorities, requiring the approval of two thirds of the Federal Council for Audiovisual Communication (COFECO) and only after a process in which the right to defence is guaranteed.
“Decree 236/2015 tries to give an apparent ‘legality’ to a political measure which consists in removing the authorities with an ongoing mandate and still within their term for not being politically useful to the new government,” said the organisations in the application to the IACHR.
But the most worrying of the three decrees is 267/2015, signed on 29th December and ratified by Congress on 6th April, which, as the president of the Freedom of Expression Commission in the Lower House of Congress, Remo Carlotto, expressed, modifies the Media Law “with surgical precision” to benefit large media groups.
Firstly, the decree dissolves AFSCA and AFTIC and replaces them with a new body called ENACOM, which falls under the orbit of the Communications Ministry. Whilst the board of AFSCA was made up of a president and a director appointed by the Executive, three directors appointed by a bi-cameral commission —representing the first, second, and third majority in Congress— and two directors appointed by the COFECO —one of whom had to be an academic—, the board of the new ENACOM is made up of a president and three directors appointed by the Executive and three directors appointed by the bi-cameral commission representing the three main parties. Thus, the new ENACOM is controlled by the Executive, which has a guaranteed majority on the board, completely bypassing the requirement of autonomy and independence. Furthermore, the four-year terms of the directors coincide with the term of the government (in the old AFSCA, the director would start and finish two years either side of the change of president) and they can be removed by the Executive without motive.
That is not the only modification to the Media Law introduced by the decree. By changing the text of some of the core articles of the law —including articles 41 and 45, two of those that were judicially challenged by Grupo Clarín and upheld by the Supreme Court in 2013— the new regulations have “devastating effects in terms of [media] concentration”.
The decree removes the prohibition to transfer audiovisual services licences set out in the Media Law for commercial licence holders, while maintaining the restriction on the non-profit sector. According to the petitioners: “This clears the way for those actors who already have dominant market positions to increase their scale,” affecting not only the guarantees to freedom of expression, but potentially “many jobs” as well. This is aggravated by the elimination of the 35% limit on market share at the national level and by the introduction of automatic licence renewals —something deemed unconstitutional in some jurisdictions, including the Inter-American Court of Human Rights.
Finally, the decree removes cable operators from under the scope of the Media Law. “There are no more concentration limits, no obligation to broadcast their own channel, no obligation to introduce local TV stations, or to respect the order of the TV channels,” stated the organisations in their petition to the IACHR. “The ‘must carry’ dispositions are gone, which forced cable operators to include TV stations owned by other companies, and so creates the conditions to broadcast only their own channels, from a central node. It limits the possibility to discuss issues of plurality, diversity, local and regional contents, information, [contents produced] by local universities, independent fiction.” This is particularly relevant in a country where 83% of people access TV contents through cable, in an already concentrated market.
On top of all that, media organisations question the fact that the changes were introduced by decree. Despite what some have claimed, the 2009 Media Law was widely debated inside and outside of Congress, a period in which many changes were introduced to the original text. In fact, it was a process that started as early as 1983, as changing the old law put in place by the dictatorship was a priority for many media organisations from the onset of the democratic period. The new government unilaterally changed key provisions of the law without any kind of debate, using an instrument (the emergency decree) that was completely disproportionate to the actual urgency of the issue. When decree 267 was ratified by Congress last week, the opposition also questioned —and legally challenged— the procedure, as it was voted by a show of hands, rather than nominally.
After the media organisations laid out their concerns in the hearing before the IACHR, government representatives —including the Human Rights Secretary and the president and director of ENACOM— had the chance to respond to and address the issues raised. They chose not to.
The government delegation used the 23 minutes awarded by the IACHR to attack the previous administration and list a number of incidents which supposedly showed that freedom of the press was constantly under attack before 10th December. Whilst they raised some valid points, such as the arbitrary distribution of government advertisement and the deficient application of the Media Law (something that community media organisations have also criticised, while defending the law itself), they were either completely unrelated to the debate at hand, or in no way justified the changes made to the law, and certainly not the urgency in making them by decree.
They also focused on the fact that these provisions are “temporary” and that the government is working on a new media bill to take to Congress, failing to address the impact that these changes, temporary or not, are already having on small and community media outlets.
Whilst the IACHR kept, for the most part, a fairly neutral position and emphasised the importance of bringing the different parties together to discuss these issues, some of the commissioners raised questions on how the new legislation will address issues of media concentration, the independence of ENACOM, media diversity and plurality, and the participation of civil society in the drafting of the new bill. The government promised to open the process to the media organisations, though recent precedents —both in terms of keeping promises and of facilitating the participation of civil society— don’t leave much room for hope.
The director of the Communication Sciences Department at the University of Buenos Aires, Diego de Charras, summed up the government’s presentation at the hearing: “They say the word ‘dialogue’ a lot, but they don’t listen to the points raised by their interlocutor. The point here was about the incompatibility of three decrees and the modification of two laws. About that, they said absolutely nothing.”
Bringing the case to the IACHR and forcing the government to justify their actions was an important step that was celebrated by the media organisations involved in the petition. However, any recommendations the Commission might issue are non-binding, and the government’s attitude at the hearing suggests it has little regard for this hearing.
Given the pro-business orientation of the government, there are concerns that a new media bill will not address the concerns of small and community media outlets or fight media concentration. The efforts of thousands of people over many years was finally expressed in legislation in 2009 —in an imperfect law which was more than imperfectly applied, but which was better than what we had then and better than what we have now. In December it was partially wiped out in just a few weeks, and there is little that can be done about it for the time being.
Despite the multiple and sometimes contradictory theories in the communications field and the increasing availability of information on the internet, few people would question the importance of traditional media in shaping public opinion, agendas, and perceptions. And few people would question the ties between media groups, economic groups, and politics. The media, especially big media, can make or break candidates, manipulate audiences, win elections. The more concentrated the media landscape, the more power they have, and they certainly make use of this power to help those who can be favourable to their economic interests. This help, however, isn’t free — in fact, we’re paying for it now.