The conflict’s focal point is the controversial “Media Law,” also known as the Audiovisual Communication Services Act (No 26.522), passed by Argentina’s Congress in October 2009. Article 45 of this law limits the number of broadcasting licenses that any media organisation can hold, and Article 161 establishes a procedure to divest incompliant companies of their holdings. Proponents call it a move to increase media plurality; detractors consider the measure a government ploy to dismantle its most vocal critic.

The World Assocication of Newspapers and News Publishers (WAN-IFRA) supports Clarín in the dispute. "The measure allows government interference in the press in the name of maintaining media diversity. This is an absurd argument in the digital age, when media are more diverse than ever before,” its management said in a December 2011 statement. A year before, the association had voiced concerns over the act’s constitutionality, and the risk of censorship: “The proposed Audiovisual Communication Services Act, which was denounced in a judicial review as ‘anti-constitutional,’ threatens the economic stability of independent media and raises serious issues of government censorship through its licensing requirements.”

In a challenge to the law’s acceptability under Argentina’s constitution, Clarín succeeded in winning a temporary injunction against compliance. Although Argentina’s Supreme Court has not yet ruled on the constitutionality of articles 45 and 161, it decided in May that the injunction would expire on 7 December 2012. The Kirchner’s administration has thus declared this constitues the green light to begin stripping the out-of-favour news group of its properties, and auctioning them off to other businesses. Clarín argues that on ‘el 7D’, as the date is called colloquially, nothing will happen; until the substantive constitutionality of the article has not been definitetly ruled upon, the legal effects of the article remain suspended.

Let’s rewind a few years. Between 2003 and 2007, during the presidency of Mrs. Kirchner’s late husband and predecessor, Néstor Kirchner, Argentina’s government looked kindly upon Clarín. This allowed the media conglomerate privileged access to government decision-related scoops and lucrative advertising deals, according to a report by the Committee to Protect Journalists (CPJ). In 2007, it was Mr. Kirchner who approved a merger allowing Clarín to take control of one of Latin America’s largest cable companies, thereby solidifying its dominant position as top dog in the country’s media market.

The winds began to change in the early days of the former first lady’s first term. In 2008, Clarín did not side with the government in its coverage of farmers protesting increased taxes on agricultural exports. The Kirchner administration accused Clarín and La Nación, another sizeable independent media group, of slanting their coverage due to business interests. Later, the administration issued a 400-page report claiming that the two media companies had colluded with the military dictatorship that seized the country between 1976 and 1983 to win control of a newsprint manufacturer— allegations that both groups deny.

In 2009, the government revoked Clarín’s right to broadcast major football matches, which its television network had been airing for nearly two decades, and was contractually allowed to continue airing until 2014. Two months later, the Media Law was enacted. The law’s stated purpose is to democratize access to media ownership, and break up monopolistic structures by limiting the number of cities in which cable companies can hold broadcasting licenses to 24. Clarín, which owns over 200 cable television broadcasters as well as network television channels, radio stations, newspapers, magazines, a cable company and an Internet service provider— stands to suffer considerably.

That the country is in need of new media legislation is a given, even for Clarín. Media watchdogs are wary, however, of the potential for abuse in the application of this legislation by a government that has shown little reticence in manipulating the environment for independent media. The Media Law will replace the Broadcasting Act, which was imposed under the dictatorship in 1980. “That law was so old that it called FM radio a new technology,” Jorge Fontevecchia, Chief Executive of Editorial Perfil, the country’s largest magazine company and publisher of the influential biweekly newspaper Perfil, told Editors Weblog in an email interview. “It is very important to give the current media landscape a coherent regulatory framework,” he emphasized; “this law applies to the tangible distribution of economic, socio-political and cultural power within the country.”

Fontevecchia also pointed out that the legislation was drafted with participation from civil society. “This law is the result of a long process that began with various proposals from NGOs and other associations,” he explained. “Thus was formed the ‘Coalition for Democratic Broadcasting,’ which came up with 21 points that a new broadcasting law should consider. The government then released an initial draft of the law, and over several months received suggestions and comments in order to create a second draft, which it sent to Congress on August 28, 2009.”

The act has high-profile supporters, including the United Nations Special Rapporteur for Freedom of Expression Frank LaRue, who called it “one of the most advanced [media laws] on the continent” and a “model” for freedom of expression. Among its lauded features is an emphasis on giving broadcast licenses to local communities, and a requirement that cinemas air more local films.

However, critics see the Media Law in its present incarnation as an attempt by the government to sabotage the handful of independent media outlets that are powerful enough to disagree with it, and consolidate its control over the smaller regional players who rely on official advertising for survival. According to the Guardian’s Roy Greenslade, the Kirchner government is now estimated to have direct or indirect control over 80% of the Argentine media. Henoch Aguiar, a former Argentine Federal Communications Secretary, warns that the act signals intentions of further influence. “There are monopolies in Argentina but they’re mainly related to government media, not Clarín,” he has asserted, according to the Wall Street Journal. “The government is using all its resources to demolish an enemy and control the media a bit more. That is grave.”

One of the government’s reported methods of wielding its power is through the allocation of advertising contracts. The federal government became the largest advertiser in the country in 2010, spending approximately $279 million to send messages via the mass media, compared to $10.5 million in 2003. It has been known to retaliate against its critics by withholding its ads from their airwaves, according to Andrés D’Alessandro, Executive Director of FOPEA, a local journalists group. Clarín’s television properties, for example, ran almost no federal government advertising at all between May and October 2011, according to a study by non-profit group Poder Ciudadano (Citizen Power).

In March 2011, Editorial Perfil, which like Clarín and La Nación is known as a critical, independent voice, brought the government before the Supreme Court over its advertising policies, and won the case. The Court ruled that the executive branch was required to “apply reasonable balance” in the way it distributed advertising, according to CPJ. Seven months later, the government had placed all of eight ads in the pages of Perfíl’s eponymous publication, one of which stated: “The publisher of this newspaper has honoured businesses that are being investigated for human trafficking and slave labour.”

With the government’s track record in mind, Editorial Perfil’s CEO is at once optimistic about the Media Law’s potential, and circumspect about the way it might be applied. “This law can encourage and facilitate further development in the plurality of voices in the media if it is applied in a general, non-discriminatory manner, based on the logic of calling for open tenders, and equal opportunity for all,” Fontevecchia told us. “But in my particular case, that is, the case of Editorial Perfil, if I cite the allocation of government advertising as an example, I have a feeling that we will only see a proliferation of government media, protected by the state.”

“If the [Federal Authority of Communication and Audiovisual Services] implements it with a simple strategy of persecution against Clarín instead of seeking to enforce the law as a whole, we will only see one monopoly replaced by a state-controlled one— one whose future is dependent upon the government in power,” he continued. “The media law should ensure the plurality of voices, and not control content. The pressure is great, and the stakes even higher… For now, the only thing we can do is wait.”

Sources: Wall Street Journal, Committee to Protect Journalists, Guardian, International Press Institute, Perfil