Supreme Court Ruling in the case ARTEAR v. the Argentine State re. Government Advertising

Fundación LED (Libertad de Expresión + Democracia) has actively reported arbitrary, discretional management by the Executive of public resources intended for Government advertising. Such discretional managementhas been going on for over a decade and keeps constantly increasing; it  has turned into an indirect censorship mechanism, affecting the right of the media to freedom of expression and the free access to public information.

In our country this situation has led to the intervention of the Supreme Court of Justice of Argentina in order to defend the right to freedom of expression.

Indeed, in the “Editorial Río Negro” (2007) and “Editorial Perfil” ( 2011-2012) precedents, as well as in the summary “Amparo” proceedings brought to defend constitutional rights(where the Court ruled against “Instituto Nacional de Servicios Sociales para Jubilados y Pensionados – PAMI- (the Social Security agency)” (2012)), the Supreme Court urged the Executive to set up an “equitable system for the distribution of Government advertising” between the different media, and to establish objective, quantifiable guidelines, thus recognizing thatindependent media were at a disadvantage on occasion of the distribution of such resource, on which they rely (as a source of income)to survive. According to the Court, “Although the mediaare not subjectively entitled to obtain Government advertising, the State should not allocate advertising revenue arbitrarily, on the basis of unreasonable criteria. The distribution of State advertising may be used dissuasively, to curb freedom of expression, indirectly affecting that right. If the State decides to award advertising to the media, it should do so in line with two constitutional criteria: advertising should not be manipulated bydiscriminately giving it to or taking it away from certain media, and Government advertising should not be  used as an indirect way ofimpacting on freedom of expression.”

Further, in the case “Grupo Clarín et alv.the Argentine Executive,”on October 8, 2013 the Supreme Court ruled that the Audiovisual Communication Services Law No. 26,522 is constitutional, and stated with utmost claritythe grounds for its ruling: “Much has been said about this Law and its purpose, which is to achieve mass media plurality and diversity, but none of it would make sense without transparent public policies concerning Government advertising. The role of the State is to vouch for freedom of expression.Such role would be pointless, however, if subsidies, the distribution of Government advertising or other benefits turned the media into mereinstruments to support a given political trend or into a way ofeliminating dissent and a plural debate of ideas.”

Today we were pleased to read a new ruling by the Supreme Court in the framework of the case “Arte Radiotelevisivo Argentino S.A. v.  the Argentine State – JGM- SMC re.Summary “Amparo” Proceedings to enforce Constitutional Rights Law 16,986” of February 11, 2014. In this case, Plaintiff requested the Government to stop the arbitrary, discretional placement of advertising to its detriment and demanded a balanced distribution of the amount of official advertising, which had been signficantly reduced.