Report to the 72nd General Assembly

Mexico City, Mexico

October 13 – 17, 2016



There have been no reports of attacks upon or threats to press freedom in these past six months, but there have been positive developments, such as the Supreme Court of Justice having started to declare as unconstitutional some articles of the Law on Audiovisual Communication Services or the Media Law promoted by the presidency of José Mujica and approved by the Congress in December 2014, shortly before President Tabaré Vázquez assumed his role.

Vazquez had said from the outset that he was not going to put the law into effect on the expectation that the Supreme Court rulings which, as was known, had received very many challenges. The rulings to date have regarded as unconstitutional the following articles:

Article 39, paragraph 3 which regulates events of general interest and would require that Uruguayan football matches to be broadcast on open television.

Article 55 which sets a limit on the number of subscribers that cable television operators may have.

Article 56 which prohibits companies that operate television permits to also sell to their subscribers telephone and data transmission services. That is to say those called "Triple Play" which include Internet, cable channels and telephone and make a hole in the monopoly that the state Antel enjoyed.

Article 60, paragraph 3, sections 1, 2 and 3 on regulation of content.

Article 98, paragraph 2, which permits the suspension of news media in the face of obstacles to inspections that the Executive Branch carries out.

Article 143 which regulates the distribution of free-of-charge advertising spaces on television and radio for national, legislative and municipal elections.

On April 5 the Supreme Court of Justice pronounced its first ruling on unconstitutionality of four articles of this law, in response to an appeal lodged by Directv. It was accompanied by a series of valuable considerations of the judge, Felipe Hounie, who wrote concerning press freedom and its constitutional protection in the country as the basis for the ruling: "Without freedom of the news media, without it being possible to seek, receive and disseminate information, for all people to be in a situation to form their own criteria, there cannot exist plurality of ideas and consequently the unrestricted right of each one to think as he or she considers best."

Hounie questioned concepts by his colleague Jorge Chediak on the ruling in affirming that the refused norm intervenes in contents that the news media emit, which "does not appear to be in agreement" nor does he coincide with the new technological era in which people have access to contents outside of the traditional media.

The challenged articles and the reasons were:

Football, basketball and "additional events: on the appeal against Article 39 of the Media Law that enables the broadcasting of football and basketball games by open channels," the Court unanimously accepted this, understanding that it is unconstitutional and making exceptions: "when there does not exist any other provider interested the transmission the Public System of National Radio and Television shall have to take charge of guaranteeing the right established in the preceding article, so long as it be technically possible and in the modality of re-broadcasting." It adds that the Executive Branch shall be able to justify some broadcasts but with the prior reference of the Audiovisual Communication Council.

For Larrieux and Chediak this norm enables the expropriation of patrimonial rights of the company that has the right to broadcast the signal. Meanwhile, Pérez Manrique, Hounie and Martínez declared that paragraph 3 of Article 39 is unconstitutional for violating the principle of legality of legal reserve.

Regarding Article 55 on the limits to the number of subscribers, which cannot be more than 35% of the total of homes with television for subscribers of each territory where there exist other authorizations or licenses of lesser reach, the Court argued that without prejudice to seeking that there be avoided monopolistic or oligopolistic conducts, there ends up "violation of the right of ownership" of Directv, including where that company is the only provider of services.

The decision indicates that ownership is an inviolable right and that damages legal security, for affecting rights acquired by the company.

The Court also regarded as unconstitutional section C of Article 60 which promotes national television production, with a minimum of 30% of the national programming, one independent producer not being able to concentrate more than 40% of that percentage.

Also established are standards regarding programs and films of independent and national production and programming timetables with protection for minors.

The Court considered that freedom of expression is being violated, arguing that "it is one of the most evident offenses of Law 19,307 of the Charter and amounts to a clear example of violation of freedom of expression in establishing a series of regulations with the objective of promoting national audiovisual production, an objective that in a State of Law cannot be obtained through pressure, but by stimulus."

Concerning Article 98, which regulates the inspections to be carried out by Ursec and authorizes the Executive Branch to suspend broadcasts, the Court unanimously considered that this norm is unconstitutional because it enables the Executive Branch, administratively, to suspend Directv broadcasts before the company is heard, violating the right to due process established under the Uruguayan Constitution.

On April 11 the Supreme Court pronounced on the appeal lodged by the Independent Party concerning the regulation of free electoral advertising. Article 143 holds that in the cases of national, legislative and municipal elections 20% of the free-of-charge spaces shall be distributed in equal parts among the slogans (which was declared constitutional) while 80% of the rest "shall be distributed in direct proportion to the votes obtained by each slogan in the national elections immediately prior." The ruling highlights the value of electoral advertising to generate awareness and it was considered that "it violates the principle of equality" and "places obstacles for minorities to access to power", or put another way "it perpetuates power to the minorities."

The Supreme Court's fifth ruling concerning unconstitutionality on August 8 was in a hearing sought by Monte Cablevideo S.A. and refers to Triple Play, which to date has been the exclusive monopoly of the state's Antel. The curious thing about this ruling is that previously, in the packet of rulings promoted by Directv, the article had been declared to be "constitutional" and now the Court considered it to be "unconstitutional," after some judges, having gone into depth on the issue, changed their opinion. "Regarding the prohibition of providing services of telecommunications, telephony or data transmission, as the case may be, there do not exist reasons of general interest to limit such rights, a circumstance that, by itself, violates the principle of freedom envisioned in Article 7 of the Constitution," the ruling says.