On October 29th the Argentine Supreme Court ruled that Grupo Clarín, Argentina’s biggest media conglomerate, would have to comply with the 2009 Audio-visual Media Law, concluding a dispute that began four years earlier. While the law had already been sanctioned and enforced, the court was ruling on four articles that, according to Clarín’s CEO Héctor Magnetto, encroach on Clarín’s ‘freedom of expression’. Clarín called into question the ‘constitutionality’ of articles 41, 45, 48, and 161, which regulate the amount of licences companies are allowed per district and also in the country as a whole. With these articles now approved, Grupo Clarín is looking at either dividing the company or having to sell 222 of its licences.

Image courtesy of the Presidency of the Nation of Argentina, © 2011, some rights reserved

Image courtesy of the Presidency of the Nation of Argentina, © 2011, some rights reserved

Considering Argentine President, Cristina Fernández de Kirchner, is neither renowned for her tolerance nor her desire to compromise, it is hardly surprising that international press has presented the verdict as ‘government overreach’ and an attempt to ‘silence criticism’. Few newspapers, however, have given the government’s side of the story and in order to understand why both sides are claiming to defend democracy and freedom of information, it is vital to trace the feud back further than 2010.

Grupo Clarín alleges…

Historically the newspaper Clarín has never supported Peronism and this has exacerbated disagreements that it has had with the current Peronist Kirchner administration. For this reason, Ms Kirchner’s government created the 2009 Media Law as a direct attack on Clarín, in the hope that it could close down or appropriate the company just as Juan Domingo Perón did with opposition newspaper La Prensa in 1951.

Disagreements began when Ms Kirchner’s predecessor, and late husband, Néstor Kirchner tried to secure Grupo Clarín’s support but was rebuffed; despite his attempts to court Clarín, the paper refused to become a government mouthpiece.

Their differences came to a head during the 2008 dispute over raising taxes on soya bean and sunflower exports, an episode seen by many as the first major setback for the Kirchner government, and in which Clarín backed strikes and protests in the agricultural sector. As a response to this public denunciation of and victory over the government, Ms Kirchner attacked Grupo Clarín with the Audiovisual Media Law, an effort not only to silence it but also to squeeze it financially. In addition to the economic losses incurred by having to sell surplus licenses at uncompetitive prices, the government has been applying pressure on companies like Walmart and Carrefour to not advertise in Clarín, thus depriving the paper of further sources of revenue.

Grupo Clarín’s main allegation is that the law violates Article 14 of the Argentine Constitution, which guarantees the right to ‘publish ideas in the press without previous censorship’.

And the government responds…

Clarín was a supporter of the military dictatorship and harbours an additional grudge against the Kirchners for their association with an anti-governmental guerrilla group, the Monteneros whose suppression the newspaper deemed ‘necessary’.

When Néstor Kirchner assumed the presidency in 2003 he understood that a group like Grupo Clarín, bigger and more powerful in Argentina than is News International in the UK, could significantly weaken support for a President who won by default. For this reason he offered Clarín some concessions, one of which was approval for a merger between it and the other major broadcasting company Cablevisión. As the merger gave Clarín control of up to 94% of the market in certain provinces, without government approval it would have breached antimonopoly laws. In 2007 when Ms Kirchner assumed the presidential office her strong mandate freed her from the need to placate Grupo Clarín and the National Competition Commission tried to impose restrictions on the merger that never should have occurred in the first place.

Resentful at her actions, Clarín attempted to incite a coup d’état during the 2008 tax dispute by exaggerating unemployment figures and encouraging anti-government protests; as coups d’état have historically followed a combination of economic crisis, popular dissent and political opposition from the elites, it is not surprising the government feared for its security.

Rather that defending ‘freedom of expression’ Clarín is simply preserving its own political and economic interests. The only parts of the law it contests are those that directly affect it financially.  Its treatment of Enrique Lacallo evidences its own disregard for free speech: the Grupo Clarín journalist had written an article in defence of the government’s tax increases, arguing that opponents were simply helping line the pockets of oligarchs and foreign companies.

The 2009 media law was passed as a long overdue replacement of that of 1980 that had been designed to aid the military dictatorship to control public opinion. The new law ensures diverse media coverage and its legitimacy is underlined by the fact that all other media companies have complied with the law.

Who to believe?

There is no doubt that each side has its own axe to grind and the timing of both Clarín’s support of anti-government protests and the creation of media law shows that neither side acted impartially. The context of the case shows it is not as simple as Grupo Clarín vs. the government of Argentina, and can be interpreted as Peronists vs. anti-Peronists, big government vs. big enterprises or the rural vs. the urban depending on which bit of the web you try to untangle.

Government attempts to make media a public service are disconcerting and the thought of Argentinean media becoming an instrument of the government, as it is in countries like Bolivia and Venezuela, has justifiably alarmed onlookers. But while it is easy for Western newspapers to denounce “censorship” and promote “democracy”, things are often not as clear-cut as they seem and the Argentine government is right to curb magnates like Clarín’s Hector Magnetto’s influence in politics.

This lesson may become all too clear to Sergio Massa, current favourite to succeed Ms Kirchner, if he were to assume the presidency. While Mr Massa helped draft the media law, since Grupo Clarín declared its outright support for him in the October elections he has deliberately sat on the fence, attempting to simultaneously court Mr Magnetto and ‘not rub out with my elbow what I wrote with my hand’. While a reversal of last month’s verdict is unlikely, Clarín are clearly trying to regain lost ground and Mr Massa should remember Mr Kirchner’s predicament in 2003 before he makes compromises too readily with the media giant.