By APCNews 21 September 2018
Vice-president of the World Association of Community Radio Broadcasters (AMARC) for Latin America and the Caribbean and professor of media law, new APC individual member Damián Loreti is one of the leading experts on freedom of expression in the region. Fourteen years after the drafting of the document “21 Key Points for the Right to Communication”, a citizen initiative calling for a new democratic media law spearheaded by Argentina’s Democratic Broadcasting Coalition and promoted by Loreti, we spoke with him on the progress and setbacks in this area in Argentina and the rest of the region.
APCNews: Both the 21 Key Points for the Right to Communication and the Audiovisual Communication Services Act in Argentina, which you helped promote, represented major gains. However, in 2016 President Macri amended the law through a decree that diluted its antitrust nature, thus benefiting the country’s leading media companies. Could you tell us what has happened and where we stand now?
Damián Loreti: This is certainly a very complex issue and needs to be contextualised. Latin America’s political polarisation is having a direct impact on the media, as one of the components of political and economic power. For that reason, whenever there is a debate on any type of initiative that seeks to expand rights or enhance wealth distribution, the response is categorical and absolute. In cases calling for greater inclusion in the public voice, the hostility is even worse. Both the courts and the media have what Bourdieu called the “power of naming”. Grassroots initiatives that break the mould are condemned for not respecting the institutions or for violating the constitution, so that one of the battles over meaning that was waged in the years-long judicial harassment endured by the law we proposed was that it was unconstitutional until the courts declared otherwise. But it is actually the other way around. Laws are constitutional until a court issues a final ruling declaring their inapplicability. It is not a matter of the majority rules, rather that human rights standards must be respected. In that sense, at that point we won a cultural battle and a battle over meaning. Countering the logic that “the best law is that which does not exist,” Argentina now has a ruling, with res judicata effect, that establishes that regulations are meant to guarantee the right to communication, as every rapporteur on the freedom of expression has declared since 2007.
APCNews: What lessons can we learn from this process?
Damián Loreti: The first lesson is that developing a law is possible if you have a good bill, political will and the support and conviction of the people. In this sense, media policy was discussed everywhere, from schools to stadiums.
The second lesson is that media rules are not something that is floating in a void. They are part of the political and legal battlefield. There are some who play on the opposite side of those who, like us, prefer to expand rights and are not passively waiting to see what happens. There are visible and invisible threads being moved. In Argentina, in the famous “Clarín” newspaper case, the court of appeals itself, which had issued a preventive measure to suspend the application of two articles of the law, later declared them constitutional and fully applicable. The regional media alliance had similarly stigmatised all movements, however insignificant, merely because they repeated what the UN or OAS freedom of expression rapporteurs said, publishing what are now known as “fake news” and announcing a catastrophic fate for freedom of expression.
The third lesson, also based on the fact that media legislation does not exist in a void, is that conservatives are not interested in human rights, institutionality or international commitments.
APCNews: Looking back self-critically at the process, what could have been done differently?
Damián Loreti: If we reduce the issue to the fate of the media law, what happened was an anomaly. The Inter-American Commission on Human Rights (IACHR) found that there was a serious regression and ordered the state to enact new democratic laws. The UN recommended that the government revert to the previous law, given the formal and material irregularities of the Necessary and Urgent Decree that amended the law. But if we analyse what happened in the first four or five months, we can see that it was part of something much larger, part of an aggressive policy against the popular and middle classes and the institutions themselves. Money laundering laws used by relatives of officials who were authorised by decree, even when the law itself did not allow for that possibility, ignoring the orders of the IACHR and the UN Working Group on Arbitrary Detention regarding an irregularly detained woman, attempting to appoint judges to the Supreme Court by decree and without going through the Senate, a historical indebtedness in just one year that the country will be paying for the next one hundred years... There is no mistake in this; tens of thousands of civil servants have been laid off. In sum, even if things had been done differently, it was very difficult to imagine that what had been achieved could be sustained solely by preserving an institutionality that this government is not interested in respecting. The Supreme Court has gone so far as to ignore a ruling handed down by the Inter-American Court of Human Rights, arguing that it was not applicable. In that framework, the media law is just one more knot in a long rope.
This does not mean that everything was done right. The failure to hold competitive biddings to grant licences, especially to non-profits – cooperatives and community organisations, but also trade unions – resulted in a base with much less institutional sustainability and a less diverse landscape, but it is difficult to imagine that if things had been done better the conservative government we are now under, which has even moved away from human rights standards, would not have acted with the same force to wipe out everything. The same would have happened if Grupo Clarín’s mode of “conforming” to the particulars of the law would have been accepted after the Supreme Court’s judgment rejecting the action against the media law. The complaint from the most vulnerable sector was that licences were not granted pursuant to the law. It is a serious matter and it is true that in the most populated places, competitive biddings to grant licences were only held near the very end and not all of them were completed. But the breakdown in the media’s democratic institutionality is not attributable to these failings. This government has endorsed the revision of the decision not to allow the armed forces to govern themselves, as proposed by President Alfonsín in 1984. It was only in late 2017 that things started to shift and a more active opposition to the government’s policy began. In fact when the IACHR questioned the government over the Necessity and Urgency Decree in 2016, it promised to conduct a series of debates and consultations and prepare a bill within 180 days. That term was extended five times and there is still no sign of what was promised. We know of no public statements by the IACHR in this regard and the courts have rejected the amparo actions requesting access to public information in order to see the files that supposedly contain the unborn bill. It would be unfair, in view of this context, to think that if things had been done better here, the power and business of the concentrated media that support the government would not have been restored as they were.
APCNews: Given this adverse legal context in the country, what do you think are the main strongholds where citizens can still find a space to exercise their freedom of expression? What remaining spaces of resistance should we support?
Damián Loreti: More and more people are participating regularly in street demonstrations. Just now there was a protest in defence of national public universities organised by faculty unions and student federations, with an estimated 400,000-plus demonstrators in Buenos Aires alone, and other demonstrations in the provinces. Open classes have been held in squares and on the street in connection with these protests.
At the same time, journalists pushed out of the media outlets they worked in through pressure from the government have began developing blogs, YouTube channels, internet radio stations... Several of them attract over 100,000 unique visitors per week. The community radio movement is still very active, despite economic constraints caused by the general economic adjustment and the manipulation of advertising contracts. Certain universities have seen a growing activity in the TV channels and radio stations they obtained as a result of the law’s aim to strengthen public media.
APCNews: Is Argentina’s case paradigmatic of the progress and setbacks with respect to freedoms in the region?
Damián Loreti: It is, and not just in terms of the media, but also in the application of the economic adjustment, the flight of foreign currency, and the reappearance of cases of repression. It is more evident in the media because it was the first law in the region to be praised and welcomed by the UN and OAS rapporteurs on freedom of expression, as well as by UNESCO. Even if there were some minor faults found in the text, it was seen by all as a giant step forward compared to the “law” inherited from the dictatorship, and made even worse in the 1990s, which still kept in place the censorship rules applied in the 1960s and 1970s pursuant to the national security doctrine. The fact is that certain trends, such as the “lawfare” trend, are regional, and so is the reinstatement of the concentrated media, backed by right-wing governments. In Brazil, there was no law, but there was a very interesting initiative, which was the federal public media (the Brazilian Communication Company), and as soon as Temer took office, it was dismantled. In this framework and with these lessons, we will have to follow closely the initiatives furthered by AMLO [president-elect Andrés Manuel López Obrador] in Mexico, knowing that he has very good technical experts on his team who have studied the media, and that he has to deal with Televisa and Azteca.
APCNews: What in your opinion is important that the younger generations understand about the internet?
Damián Loreti: A colleague who teaches freedom of expression used to say that the worst thing that could happen to an educator was to reach a point where they felt content with their students coming in and reciting their classes as if they were singing the lyrics to a song, without knowing who wrote it or why. That is an example I like to give when I begin my right to information classes. In these past months, I have asked my students if they can tell me when the song “Bella Ciao” is from, warning them that I don’t want them to tell me that it was written for Money Heist [the Netflix series]. That single comment prompts them to take out their cell phones right there and then to try to find out the correct answer. In class, when we discuss freedom of expression on the internet, I try to make them understand that it involves the same challenge that people faced when they made their voices heard in squares or street corners (as Owen Fiss teaches). I tell them that there are still monopolies, public police and private guards today and opportunities for others to know what we are thinking. I also tell them that the meaning of freedom of expression has to be found both on the internet and on paper and radio frequencies. And that they should not believe that just because they can connect from their homes to anywhere they want, that solves everything. What’s more, I show them statistics about the percentages of connectivity in the region so that they will be aware of another conflict. This account may seem biased because of the type of audience, but it shows the concerns I have and gives students an opportunity to think about a tool that is not safe from the danger of being influenced by business or security or defence (where it, in fact, originated).
APCNews: You are without a doubt a highly valuable addition to the APC network, bringing as you do your vast experience in the field of communications. Can you tell us why you decided to join the network? Where would you like to contribute as a member and what do expect from APC in the future?
Damián Loreti: I have been hearing for decades about APC’s capacity for impact and the broad range of issues it deals with in depth. I feel privileged just having the possibility of participating in the same spaces of discussion as people from whom I learn and whose writings I read. There has been an increase in the number of places of study and reflection, but we must be aware that they are not all good, many are undemocratic, and others are influenced by their donors. I am absolutely certain that none of these criticisms could be levelled at APC, which is instead an example of the complete opposite. At the same time, I think I can be of some use because of my professional, academic and activism experience in the field of freedom of expression and the right to communication.
For the future I see an APC that will maintain its capacity to make a democratic impact and to seize the public voice with courage, to defend the values of human rights that surround the world of communication.