In a split decision, the Argentine Supreme Court has ruled that the controversial media law is constitutional, a win for the government against Grupo Clarin.
The law was endorsed with six votes in favour and one vote against after four years of court appearances and, most recently, in August, two days of public hearings to consider the constitutionality of the law held by the Supreme Court of Justice.
The law was first passed on 10th October 2009 but certain articles were suspended and never implemented due to legal challenges from Grupo Clarin. Argentina’s largest media group objected to four articles: 41, 45, 48, and 161 which relate to the restriction the number of audiovisual licences held by a media company and the time limit for those to who have to comply with the law.
First instance judge Horacio Alfonso declared the contested articles were valid in December 2012, a decision which Grupo Clarin immediately appealed, and in April 2013 the Civil and Commercial Appeals Court in Buenos Aires ruled that the articles were unconstitutional.
The judges concluded that the law does not affect Grupo Clarin’s right to freedom of expression and considered this type of regulation widespread and an accepted practice internationally.
One of the most contested articles, number 45, sets the maximum of 35% of the market in the hands of a single operator and companies that exceed these limits are required to auction off media licences.
The 392-page ruling states that to “regulate multiple licences, in general, is constitutional because it is a faculty of Congress, whose convenience and opportunity is not subject to analysis by the judges.”
The ruling states it is, “legitimate that a law fixes general limits because this method favours the freedom of expression to impede market concentration.”
“It is not acceptable that only economies of scale, such as those it [Clarin] currently has, guarantee sufficient independence to constitute a critical voice. There are numerous small or medium media outlets exercising a critical function and, conversely, there are large concentrations of media that are condescending towards governments.”
The majority ruling found that the terms of Article 161 –which gave media groups one year to divest any excess licences – have expired and the law is able to be implemented immediately.
The ruling said the media regulator AFSCA should be independent and is responsible for implementing the law. It did acknlowledge that new court cases could arise when the government decides to proceed with the divestiture of Clarin, the only media group that did not present a compliance plan.
The Supreme Court said in the ruling that freedom of expression is, of the freedoms enshrined in the Constitution, “one that has greater importance” to the extent that, without proper protection, “only a nominal democracy exists.”