Justices side with Clarín Group, harshly criticize CFK administration for lack of clear rules
by Federico Poore
Buenos Aires Herald, 12-04-2014
The Supreme Court yesterday ordered President Cristina Fernández de Kirchner’s administration to restore government advertising to Clarín Group’s Channel 13, following a claim made by the media conglomerate.
The country’s top justices used harsh language to describe the government’s attitude towards its previous rulings on state advertising, especially one made by a federal court that last June granted the federal administration 30 days “to prepare and present a distribution scheme for state advertising” on Channel 2 (América TV), Channel 7, Channel 9, Channel 11 (Telefé) and Channel 13.
“Failure to comply with a judicial ruling means a failure to recognize the separation of powers, which leads to a serious deterioration of a constitutional democratic state,” the justices wrote in a 6-1 decision.
In a 20-page ruling mostly composed of quotes from previous decisions, the Supreme Court scolded the Public Communication Secretariat and the Cabinet chief for failing to stop “arbitrary and discriminatory” placement of official advertising that affects Artear SA, the controller of Clarín’s broadcast channel based in the Constitución neighbourhood of Buenos Aires City.
In that context, justices warned that “the conduct adopted by the State constitutes a clear violation of constitutional rights.”
Justice Eugenio Zaffaroni — who had backed the top tribunal’s opinion in the Río Negro case — wrote for the minority that Attorney-General Alejandra Gils Carbó should have “issued her opinion” first.
The case began with a preliminary injunction requested on 2012 by Artear SA, where the company asked for an end to the government’s refusal to let it have a fair share of official advertising.
Yesterday’s decision follows a March 2011 ruling in which the Supreme Court sided with twice weekly Perfil newspaper using the same arguments it had used almost four years earlier with Río Negro’s most important newspaper in a case against the provincial government of Neuquén.
In that case, the tribunal argued that while there is no right to receive a certain amount of government advertising, there is, in fact, protection against placing state money arbitrarily in media outlets.
‘DOES NOT HIDE ANGER’
“The ruling confirms the Court’s jurisprudence on this issue and validates the precedent decisions on the Río Negro and Perfil cases,” Clarín Group spokesman Martín Etchevers told the Herald. “Should the State fail to comply with this decision, we will demand that the Court establish a case of disobedience.”
The decision does not hide the top tribunal’s anger at the fact that the government has openly disobeyed previous orders, lawyer Gustavo Arballo told the Herald.
“They spend a lot of time saying: you should stop questioning my rulings,” Arballo added.
In October last year, the Supreme Court ruled in favour of the constitutionality of the government-sponsored Broadcast Media Law. But on page 74 of the ruling, the justices said the law would lose its meaning unless the federal administration adopts “transparent public policies” in the distribution of state advertising.
The Supreme Court is well aware that the government has “cheated” after previous decisions. In the case of Perfil, the government “has granted some advertisements simply to save face, but the situation is far from being a reasonable distribution of state funds,” media expert Martín Becerra wrote yesterday on Twitter.
But as Arballo said — justices have grown tired this time around.
“The ideal thing would be to pass a state advertising law that combines the need to publicize government campaigns in the most read newspapers with some kind of measure in order to provide a counterweight that would benefit smaller or niche publications — or provincial newspapers,” he concluded.