In December 2014, within a regional context that pointed the way towards the regulation of the audiovisual media, the Uruguayan Parliament passed Law 19,307 which regulates Audiovisual Communication Services and is popularly known as the Media Law (the "Law").
The passing of the Law resulted in the submission of more than a dozen unconstitutionality proceedings before the Supreme Court of Justice ("SCJ"), challenging the constitutionality of the Law in general as well as of several of its articles in particular. The latter were filed by various claimants, such as paid television service companies and other broadcasting companies, a union that groups and represents private broadcasters and television, and political parties.
All actions based their basis on different articles challenged by the specific interests of each claimant, however they all had the same goal, to bring down the Law as such for understanding that it sought to restrict freedoms constitutionally granted.
The unconstitutionality proceedings
In Uruguay, every unconstitutionality process against a law implies, prior to analysis of the case by the SCJ Judges, the issuance of an opinion from the Public Prosecutor.
The participation of the Public Prosecutor, although mandatory, does not oblige the SCJ Judges regarding the analysis of the claim or the ruling finally issued. Notwithstanding the foregoing, in the past the SCJ has not strayed too far from the opinion issued by the Prosecutor.
The latter has already commented on some of the actions, being of special interest its opinion on two of them.
The first filed by a political party, in which the Prosecutor rejected the claim of unconstitutionality initiated in connection with the article governing free electoral advertising rates for each political party in terms of votes in the previous elections1.
The second submitted by a paid television service company, regarding which he understood that five articles and certain subsections of nine articles infringed the Constitution.
Provisions considered unconstitutional provisions by the Public Prosecutor
The Prosecutor understood that articles considered as unconstitutional infringed articles 72, 323 and 364 of the Uruguayan Constitution. Following are those considered as more relevant and the grounds set forth by the Prosecutor:
- Article 33 F) 5: the provision disregards any reference to content or advertising material issued and focuses exclusively on the modalities of its broadcasting to such a degree of generality that it affects the rights claimed. Also, because of the degree of generality of the provision the true scope of the term "non-traditional" becomes doubtful, making the prohibitive rule vague affecting the principles of criminality, legality and legal certainty.
- Articles 39 (subsection 3) 6 and 407: enable the Council of Audiovisual Communication ("CCA") without time limit requirements to advise the Executive Branch on those programs that it construes as public interest. The Law sets no guidelines or parameters that the CCA should serve not to injure the property rights of the broadcasting company. The intervention of the company holding the exclusive rights to broadcast is not included. It represents an expropriation without just compensation in advance of any kind.
- Article 558: its wording distorts the free play of market, which undermines businesses that collect large numbers of subscribers as a consequence of their lower costs and the quality of their signal, and potential users lose freedom to choose the option that suits them better and is more accessible.
- Articles 1809 and 18210: the amount of the penalty is graduated considering inaccurate aspects such as social impact. The penalty is graded based on an imaginary impact and estimated impact on an estimated audience.
The Prosecutor shall analyze all proceedings initiated by the different claimants and issue his opinion within each of the proceedings. Subsequently, the SCJ ought to assess both the issues raised by the claimants as well as the opinion of the Public Prosecutor in order to finally issue a Ruling on the constitutionality that covers and contemplates each and every article challenged within all proceedings.
The SCJ has not, to this date, emitted a formal nor informal opinion nor a ruling on any of the claims.
It must be underlined that its opinion on the subject is of a special importance not only for the claimants but also for the Government, which has already stated that it will not pass the Law's regulatory decree until the SCJ has made official its opinion on each of the challenged articles. Accordingly, there is still a long way to go before knowing the last of this story...
1. Article 143 (Distribution among the political slogans (political aggrupation) .- In cases of national elections and supplementary elections, free spaces will be distributed among the slogans as follows: -20% (twenty percent) shall be divided equally among all slogans presented to the election; - 80% (eighty percent) will be distributed directly to the votes obtained by each slogan on national elections immediately preceding ratio. In the case of by-election of President and Vice President will eventually be divided equally between the two presidential tickets. For departmental and local elections, the free space will be distributed among the slogans as follows: - 20% (twenty percent) shall be divided equally among all the slogans presented to the election; -80% (Eighty percent) will be distributed directly to the votes obtained by each theme in the immediately preceding ratio departmental and local elections. In the case of internal elections, free spaces will be distributed among the slogans of the following combined: A) A party aimed at national internal elections, corresponding to two thirds (2/3) of the time allotted to free spaces as Article 142 of this law, which is distributed among the slogans on the same basis established for national elections. B) Another part, in addition to the above, intended for departmental primaries corresponding to 1/3 (one third) of the time allotted to free spaces under Article 142 of this law, which is distributed among the slogans as the same criteria established for departmental and local elections. In all national legislative complementary, departmental and local, and internal elections, for the distribution of space among the slogans the procedure established by Article 5 of Law No. 7,912, of October 22 1925 shall apply the distribution of space among the slogans will be made by the Council of Audiovisual Communication.
2.Article 7. The inhabitants of the Republic have the right of protection in the enjoyment of life, honor, liberty, security, labor, and property. No one may be deprived of these rights except in conformity with laws which may be enacted for reasons of general interest.
3.Article 32. The right of property is inviolable, but it is subject to laws enacted in the general interest. No one may be deprived of his property rights except in case of public necessity or utility established by law, and the National Treasury shall always pay just compensation in advance. Whenever expropriation is ordered for reasons of public necessity or utility, the property owners shall be indemnified for loss or damages they may suffer on account of delay, whether the expropriation is actually carried out or not, including those incurred because of variations in the value of the currency.
4.Article 36. Every person may engage in labor, farming, industry, commerce, a profession, or any other lawful activity, save for the limitations imposed by general interest which the law may enact.
5.Article 33: (Advertising aimed at children and adolescents) .- In response to the protection of the rights of children and adolescents, advertisements should not cause them moral or physical harm. Accordingly, issue the following limitations: (...) F) It is prohibited the emission of non-traditional advertising in children's programs with the exception of product placement and sponsorship.
6.Article 39: (Events of general interest) .- If events are broadcasted on television involving official activities of the national teams football and basketball in defining instances of international tournaments and qualifying bodies to them, such events must be broadcasted through an open television broadcasting service in and direct and simultaneous service. For these events the exercise of exclusive rights shall be limited to in those localities of the country where this condition are not met. In these cases, and if there is no other provider interested in the broadcasting, the Public System of National Radio and Television should take care to ensure the rights established in the preceding article, whenever technically possible and in the mode of transmission. The Executive Branch exceptionally may, by grounded decision and prior report of the Council of Audiovisual Communication, include additional events in this mode.
7.Article 40 (Conditions for the broadcasting or retransmission of events of general interest) .- In the event that no holder of open TV broadcasting services is interested in acquiring the rights of broadcasting or retransmission of the event, the rightholder shall authorize Public System of National Radio and Television to broadcast the event for free. This retransmission must be performed without interruption, including advertising messages embedded in rightholder signal delivered. If the event organizer was not established in Uruguay, the access obligation lies with the owner of the exclusive rights to assume the live broadcast.
8.Article 55 (Limitations on the number of subscribers of pay TV services) .- Total subscribers of paid TV companies authorized throughout the national territory may not exceed 25% (twenty five percent) of total pay TV households across the country. Total subscribers of paid TV companies authorized throughout the national territory may not exceed 35% (thirty five percent) of all households with pay TV in each territory where there are other authorizations or licenses for less scope. In both cases the total of households with pay TV will be determined according to data from the last census of the National Statistics Institute.
9.Article 181 (Types of sanctions) .- The commission of infractions will result in the application of the sanctions listed below, which are graduated according to the severity and considering the existence of recidivism: A) Observation. B) Warning. C) Confiscation of items used to commit the offense or assets found in violation, a penalty that can be applied exclusively or ancillary to other previews. D) Fine. E) Suspension of up to ninety days in providing activity, in cases of very serious offenses. F) Revocation of the concession, authorization, license or registration as provided in Article 183 of this law.
10.Article 182 (Fines) .- The amount of the penalty imposed will be graduated taking into account: a) the seriousness of the offenses previously committed by the subject to be punished B) The economic loss and social impact caused to users and consumers by the violations. This impact will be weighted taking into account the potential audience of television or radio service as well as the average total audience of actual radio or television audience in the hours during which the offense occurred, if this was applicable. C) The benefit reported to the offender by the fact object of the infringement. The maximum amount of the fine will be 10,000 UR (ten thousand indexed units). Consensual and final decisions imposing financial penalties in accordance with the provisions of this law, shall be enforceable for all purposes. The elaboration of the table for the graduation of the penalty's fine will be based on the criteria laid down in this law for the purpose of ensuring the proper implementation by the Administration, shall be subject to regulations issued in due course.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.