Can cross-ownership limits guarantee media plurality? LSE’s Lucia Cohen argues that in Argentina, the state has been accused of using a similar approach to silence government opposition.
The Leveson Report, contrary to the expectations of some observers, has not made detailed recommendations for new ownership limits on media companies in the UK. Other countries are taking a more radical approach, to the extent that some governments may be accused of using ownership limits to silence criticism.
In Argentina discussions on limits to media ownership have led to controversies about the dangers of government control. There are, for instance, on-going debates about whether to introduce new limits on the number of licenses that can be owned in press, broadcasting, cable, and telecommunications. In 2009, Argentina passed two rules concerning media access and plurality: It incorporated a digital standard for terrestrial digital TV (TDT) and established the Audiovisual Communication Services Law (Ley de Servicios Audivisuales, or SCA).
The implementation of the 2009 laws has been problematic: the biggest media group and leading critic of the government, Clarín, claimed that two of its articles (45 and 161) were unconstitutional, and were designed to choke off oppositional voices.
Measures that may limit the scope and reach of media outlets opposed to the current administration, such as Clarin, are controversial in that the state may be seen to be introducing new limits as a way of controlling the media. Indeed, this has resulted in the on-going conflict between the ruling party and the opposition concerning the real objectives of the SCA. Opposition politicians have argued that the rule was created to silence state opponents, Clarín in particular. It does not help that the country’s president Cristina Fernández de Kirchner and her supporters have targeted the major media firm in their statements, rather than making reference to other monopolies that would supposedly be affected by the new regulation.
The conflict has already reached the Supreme Court. The Argentinian president has been pressuring judges to declare the constitutionality of the articles through appeals and public declarations. The Court has recently extended the temporary measure that freezes the effects of the new laws on Clarín, while the Civil and Commercial Federal Camera decided that it will analyze the media law´s case during the judicial recess this month.
The SCA law reserved a portion of the spectrum for non-profit organizations, created obligations for private media, created an independent regulatory authority (Autoridad Fedederal de Servicios de Comunicación Audiovisual or AFSCA), and imposed limits to concentration and to broadcasting cross-ownership. Although this measure seems to try to create a more plural media environment by breaking monopolies, it is also thought to be aimed at weakening Clarín.
Last February, the Open Society Foundations’ Mapping Digital Media Project published a report on Argentinian media, citing its new media law as a step towards media democratization. Arguably, the report underestimates the risk posed by such state action to freedom of expression.
The newly created regulator, AFSCA, has been tasked with allocating radio-electric spectrum licenses “except for cities with more than 500,000 inhabitants where licenses are granted by the PEN” (the Argentinian Executive Power, in Spanish Poder Ejecutivo Nacional). As Open Society does explain, “the democratizing intentions of the law encounter a significant limit” because of the fact that government –instead of an independent and hopefully neutral body- would have the power to support the media outlets that they prefer.
The law allots 33% of spectrum for non-profit organizations, and 50% for the private sector, although “spaces are granted directly and without any public competition”. Moreover, private entities need state bodies’ consent to carry their signals. La Nación has quoted the chairman of the Committee on Freedom of the Press and Information of the Inter American Press Association, Claudio Paolillo, as saying that the SCA’s problem lies in not in its content but its unequal applicability.
So whilst the new year will see a renewal of calls for new media ownership restrictions as well as more media policy transparency in the UK, the Argentine case shows that reforms must be proportionate and justified if they are to avoid accusations that they are politically partisan.
I’m glad that the LSE has had an interest in analyzing the case of our country, but this article fails to investigate the history of the problem and this is a key issue if you try to set any comparison with the English case.
Argentinean media law until 2009 was a law passed during the last military dictatorship (while the congress was closed) and set some limits on the ownership of the media (regarding the number of licenses and, more importantly, to the inability of owners of graphic media of investing in the audiovisual industry) These rules were repealed by a Carlos Menem´s decree in 1990, no new law took effect. The benefits of this reform were distributed among some traditional families, international companies (such as the Spanish Telefonica) and especially Clarin, which went to be the owner of the largest newspaper in the country to exploit one of the highest-rated national channels, very main influential radio stations, the sole distributor of cable TV nationwide and one of the largest internet companies, as well as being a partner in countless businesses from the agriculture to the football. All this has enabled them to prevent, for two decades now, any attempt to update the legal norms regulating the audiovisual market while giving them control over a countless audience.
The fact is that, beyond the intentions and rhetoric of the ruling party, Argentina is getting his first real limits on media ownership, which is a very different scenario from the UK. To do this, the government has to fight a multimedia company that is larger than what could be in any country in Europe or even in the U.S., a company with enormous power that is not willing to abide by the law.
Finally, I like to address that the current secretary of the Inter American Press Association is the actual owner of La Nación, Bartolomé Mitre, so the bias in their reports should be taken into account: they represent the interest of those who has something to lose with the application of the SCA.
Media ownership battles in Argentina
Guillermo Mastrini, Martín Becerra and Santiago Marino
A few days ago, Lucía Cohen posted a critical article on the regulation of media in Argentina citing the report that we wrote for Open Society Foundation. Mapping Digital Media (MDM) is a 100 page report about the transition to digital media in Argentina, where the analysis of audiovisual regulation is just one part of the full document.
From Cohen’s perspective, the report underestimates the risk that state action could harm freedom of speech. Instead, from our point of view, a close reading of the report shows that the enactment of a new law on Audiovisual Communication Services is significant because it creates rights for all citizens. However, more than three years after the enactment of the Law, its application is far from what it should be. Far from underestimating the discretionary power of government to intervene, our report describes precisely this process and Cohen herself quoted one of our phrases to illustrate it in her review. The report also indicates that after the enactment of the Law, government media policy has minimized the emphasis on freedom of speech, and turned its policy to a more pragmatic and partisan orientation. That is one of the current problems with Argentine media policy. Finally, MDM’s report notes that powerful media groups as Clarín take advantage of the government’s discretionary powers to challenge the constitutional status of the whole Law.
Beyond the report, it is important to discuss how communication should be regulated and what constitutes the public interest in these circumstances. Probably due to the brevity of the article, Lucía Cohen fails to mention some important details. The former broadcasting law (it was replaced in 2009 with the enactment of Law 26.522) was conceived in the last military dictatorship and thus had a strong authoritarian component. Moreover, she doesn’t consider that media ownership concentration in Argentina largely exceeds the permitted levels in the United Kingdom or the United States. Multimedia groups hold dominant positions in all the media markets in the country and use their dominance to hinder or eliminate competition. However, Cohen doesn’t consider these arguments as a threat to the freedom of speech.
Her article also contains some statements that are not entirely accurate. The main media group in Argentina, Clarin, went to court protesting the unconstitutionality of articles 45 and 161 in the new legislation which place limits on media ownership and establish procedures to divest companies which fall foul of the limits. In its court filing, Clarín argued that the law affects its property rights, but the lawsuit does not argue that the regulation contains restrictions on freedom of speech.
The law was passed in October 2009 by large majorities of different political wings. The House of Representatives adopted it by 147 votes in favor and 4 against, while the Senate had 44 votes in favor and 24 against. In both chambers the Law had support from political groups unrelated to the ruling party, which may indicate social and political consensus about the need to reform existing broadcasting legislation. Although the political consensus subssequently became softer, currently the opposition claims full compliance with the new regulation.
As scholars committed to the change towards a more democratic society, we believe that is necessary to pursue greater independence from both government pressure and the interests of powerful and concentrated media groups. Establishing restrictions on media concentration is essential in a country where one group controls the largest media markets in newspapers, magazines, radio, free to air and cable television, Internet, as well as news bureaus and a newsprint factory. Considering only the interests of media owners to shape an opinion on concentration is equivalent to asking Rupert Murdoch to draw up plans for broadcasting regulation and to let him set limits on media concentration.
Dear all,
Thank you for your comments. I really appreciate that you took the time to answer so deeply to my blog post. I see your points and I am happy that this blog provide us the space to debate. I am a Uruguayan journalist studying a MsC in Culture and Society at the LSE and I had the great opportunity to write a blog post about the current debate in Argentina. I read the Open Society Foundation´s report and thought it was extremely interesting. However, my post was not about it as a whole. In fact, it was my analysis of the current debate on the media law.
Once again I thank you for your profound comments, which reveal the complexity of the issue.
Very much looking forward to keeping the contact with you.
Kind regards,
Lucía Cohen
Thanks Lucia for your excellent article. As someone concerned about the regulation of the media in Argentina and its impact on freedom of speech, I appreciate your remarks.
Thank you very much Rebeca! I am sorry it took me so long to answer, I just saw your comment.
Dear Lucia,
Thanks for writing about 26.522. I think one of the most important aspects is the one-thirds reservation of spectrum. As spectrum is seen to be a valuable public resource and also as a limited resource, it is interesting to see how this one-thirds reservation will be operationalized on the ground. I’m excited by the possibilities it can create for a specific and explicit law which deals with community broadcasting – something I understand Argentina does not have at present.
Thanks again for this piece!
best,
Ram