Thousands of activists from social and political organizations, the two workers’ centers of the country, human rights groups, national universities, intellectuals, artists, and journalists that supported the initiative came together in Argentina to the National Congress to join the debate that would end up turning the Audiovisual Communication Services Bill into law.
The vote in question ended in the early hours of the morning but, unlike other occasions, was not characterized by its opacity or lack of public awareness. To the contrary, the topic, which was covered by the media and went through months of discussions in forums and public assemblies organized by Parliament, had an impressive public attendance due to the ferocious campaign against the country’s principal newspaper companies. Both those who drove the initiative as well as those who resisted it followed very closely the ratification of a law that was filmed by all TV channels every step of the way.
Success at Last
The law was approved October 10, seven months after President Cristina Fernández introduced the draft, the 18th of last March, for its discussion in public forums prior to its submission to Congress. The official initiative was inspired by the 21 points elaborated by the Coalition for Democratic Broadcast Regulation. Participating in this collective are community radio networks like the Argentine Forum for Community Radio Stations (FARCO) and the Association of Community Radio Broadcasters of Argentina (AMARC); cooperatives; press, TV, actors, and musician unions associated with the Argentine Workers’ Center (CTA) and the General Confederation of Labor (CGT); social and human rights organizations; journalists and academics from around the country primarily in the field of communication.
The active participation of the Coalition was a decisive factor in the bill’s headway both in the preliminary stage of debates and in the subsequent parliamentary support from center-left parties and sectors, which made possible a very solid majority in the ratification of the law. This unexpected plural majority in both chambers of Congress gave it a legitimacy that trivialized the political objection of the right-wing parties and the probable judicial appeals from corporations.
The seven months of preparation and debate over the initiative were characterized by strong political unrest, in particular the confrontation between the government and the multimedia conglomerate Clarín; the administration’s electoral defeat in the parliament last June; and an opposition dedicated to putting an end to the Kirchner’s political cycle.
Few expected a bill of such magnitude to be taken up. In 26 years of democracy, more than 70 radio broadcasting laws introduced by different parties have never been able to reach the Congress. Since 1983, attempts to establish legislation that replaced the so-called "Dictatorship Law" had failed amidst lobbying from the media corporations. Those great social and political actors, constituted during the 90s, grew accustomed to functioning without a regulatory framework that placed limits on the phenomenal concentration of media ownership that they carried out. The multiple reforms that were made to military government’s decree served their interests.
Monopolization of the Message and the Fight for its Democratization
The concentration of media ownership is a common trait in Latin America, also characterized by limited participation from the state in ownership of graphic and audiovisual media. In Brazil, Mexico, Argentina, and Venezuela local multimedia groups developed whose dominant presence in their respective markets transformed them into very important political actors. The processes of media concentration began in the 80s and strengthened in the 90s when corporate pressures succeeded in breaking regulatory barriers and forced privatizations in the audiovisual market. The fact that they persist reveals the states’ inability to create a system of media that approaches a paradigm of pluralism and diversity.
The "deregulatory" offensive made its first advances in Great Britain during the era of Margaret Thatcher and took root in countries of the region without restriction. In Argentina the unique discourse of neoliberalism, which in the 90s scrapped all the resources and assets of the state and destroyed its essential functions, was imposed with an invaluable contribution from big media. In fact, the privatizations that turned Carlos Menem into the champion of Washington Consensus solutions began with the auction of radio broadcasters and channels and a reform of legislation to permit the cross-ownership of the press and broadcast media. That’s how the multimedia conglomerates came about.
To understand this process of vertical and horizontal integration, one may simply refer to the Clarín Group. They currently run a broadcast television channel (Channel 13) and various cable channels like TN among others. They own Radio Mitre, Radio Mitre Córdoba, and FM100. They control four newspapers: Los Andes, Voz del Interior, the sports journal Olé, and La Razón (a free paper). They also participate in the news agency DyN and various film and TV production companies, and own publishing houses, websites, and event organizing companies.
After the merging of Multicanal and Cablevisión the Clarín Group has become a monopoly in the cable market of the country and the biggest Latin American media group. Through Televisión Satelital Codificada (TSC) it monopolized the million-dollar televised football business—up until the annulment of the contract in August of 2009. Its holdings also include almost 50% of the stock in Papel Prensa, the joint enterprise that it shares with the state, as well as the newspaper La Nación. The disastrous history of this company, founded by Jorge Videla in 1978, exposes not only the collusion between big newspaper corporations and military dictatorships but also more currently its privileged access to the basic production materials for the news press.
Because of this phenomenon various initiatives emerged in civil society that placed the problem on the public agenda attempting to gain a space in the debate. They proposed that diversity of content and access to the transmission of different messages require an active policy of de-monopolization. If the industries of culture and information are in few hands, there are not the proper conditions to guarantee the right of citizens to plural content.
The Case of Argentina: 21 Points that Made History
The call for a new law—appealed for by the Coalition—arose in 2003 after the Supreme Court determined that the current broadcasting law violated several articles of the National Constitution and Article 13 of the Inter-American Commission on Human Rights (IACHR). The legal framework that the IACHR details is very important because it recognizes the freedom to access, receive, and broadcast information and opinions as a basic human right. That recognition, which includes the rights of those who broadcast as well as those who receive information and opinions, implies an extension of rights.
That which today we understand to be a universal right to information is the result of a historical process and, thus, a judicial concept broader than the classic notion of freedom of press. It is not only limited to the rights of the impresario (owner of "the press") nor to the rights of the journalist, but also includes average individuals who receive information from the press every day. Furthermore, it entails efficient access to the expression of personal opinions in the same mediums. This is where things get complicated.
The case of Argentina allows us to appreciate the functionality of article 13 of the Pact of San José, Costa Rica because it was on this article that the Supreme Court based their decision declaring unconstitutional article 45 of the famous dictatorship-era law, effective up until the 10th of last October. That article established that all broadcasting activity must be controlled by commercial parties and it prohibited non-profit groups from gaining access to licenses. The judges understood that the right of community broadcasters, cooperatives, and different social organizations to express themselves and their opinions was being violated.
The ruling from the highest court of justice in Argentina—that has enjoyed consistent prestige since its reform in 2003—inspired activists committed to the democratization of communications and served as the impetus for a collective project. In May of 2004 they unveiled it in a public presentation to then-President Néstor Kirchner.
However, as in the case of other similar experiences in the region, at that time this initiative was destined to fail. In 2004 former President Kirchner extended the licenses owned by the main economic groups who dominated the audiovisual markets for 10 years by decree. The big media corporations did not even publish the story; they privately celebrated the measure while any hope there was for change went down the drain. The few who raised their voice to denounce this new concession to media corporations—in line with the prior democratic administrations—were members of the Coalition.
A New Opportunity
Those who criticized the license extension in 2005 were the same ones who kept a close watch on Friday, the 10th of October, and celebrated the passing of the Audiovisual Communication Services Law in the streets and bars next to Congress. These events have revealed many issues that could provide us with some valuable insight. The first: the productivity that the experiences of citizens groups have demonstrated, capable of creating consensus to propel an initiative with the strong resolve to influence public policies connected to their political activism. The second lesson: the serious error committed by the political opposition, who underestimated the possibility that the bill could make it to Congress and subsequently yielded to the strategy of the multimedia corporations. They replaced the discussion of the proposal’s content with trickery and insults. They contested it before reading it, they saw it as an electoral ploy, and they underestimated the social actors who were mobilized by the initiative. They even challenged the principle of participatory discussion in society. They wanted it to advance to Parliament, but when it got there they blocked debate and left the Congress floor. The media called it "the K [Kirchner] Media Law," "the Gag Law," "the Media-control Law," among other offensive names.
This rejection in limine had a high price for the majority of opposing parties. They did not perceive that the initiative had a rich history of plural political action linked to very diverse social and political sectors, which the center-left parties recognized as their own. The majority of representatives from these parties belong to collectives that had worked on the 21 points. That is why, still hoping to differentiate themselves from the government, they decidedly supported the project. Another error committed by the Radical Civil Union (UCR) and Elisa Carrió’s Civic Coalition—who worked in tandem with Francisco de Narváez and Mauricio Macri’s new right-wing coalition Unión-PRO—was to contest certain points in the bill that, when modified, did not affect their stance. Their goal was to not take up the legislation.
The most important change was related to the telephone companies (Telefónica and Telecom). The initial bill allowed their participation as licensers of audiovisual services, thus paving the way to triple play (lending content, Internet, and phone service in the same medium). This is highly resisted by the Clarín group because the superior technology of the phone companies threatens their monopoly over the cable television industry. For different reasons, the opposition overwhelmingly rejected the participation of the telephone companies and some even accused the government of permitting their involvement because of under-the-table arrangements. To clear suspicions and come to consensus with the center-left representatives, President Kirchner decided to withdraw that controversial point from the bill. The telephone companies were then left unable to take part in the audiovisual market, although some communications experts think that they should have been granted regulated access with anti-monopoly restrictions as was previously planned. These experts believe that excluding them runs the risk of imposing advancement and technological convergence without a regulatory framework.
After this and other changes made in chamber of deputies, the entire center-left faction (the Socialist Party, South Project, some representatives of radical political strains, and others from progressivism) sided with the bill in both Houses.
In brief, we can affirm what various representatives and senators expressed the moment of the vote, that the law constitutes a victory for political representation over economic corporations. We succeeded in passing a good law; it is still perfectible, but signifies a great step for the democratization and de-monopolization of the media. It guarantees 33% of the spectrum for non-profit organizations and institutions. It creates an Application Authority with participation from the political minority in Congress, the provinces, and civil society. It introduces the title of Defender of the Public and establishes market quotas similar to those in the U.S. and European countries.
As stated by Frank la Rué, Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, "It is an extremely important precedent that establishes doctrine." The Guatemalan—having committed the sin of pronouncing himself in favor of a demonized bill—suffered stunning mistreatment in the local media when he visited Argentina last July. They purposefully hid his merits as a fighter for human rights in Guatemala, and as an outstanding academic and expert on issues related to his duties. He had to bear the aggressions from several upset representatives of the opposition, closed to any opinion different from their own. He also listened to reproaches from the media companies.
Frank la Rué’s defense was simple and forceful: "I agreed to come with a very specific objective: to see the course for the introduction of this law. The opposition in Congress was horrified; normally as Rapporteurs we must criticize governments. But it is important to also point out the good initiatives." He emphasized as a positive the fact that the bill originated in civil society and that it is inspired by the recommendations and doctrine of international organizations like the CIDH and OEA.