Argentina's Highest Court Finds Government Guilty of Indirect Censorship

BUENOS AIRES—In a major victory for freedom of expression advocates, Argentina's Supreme Court ruled this week that a provincial government violated the free speech rights of a newspaper by withdrawing advertising in retaliation for critical coverage.

The court, in protecting the free speech rights of the newspaper Rio Negro, ruled that abusive advertising practices by the Neuquén provincial government amounted to indirect censorship. The court ordered the Neuquén government to desist from allocating future advertising funds in a discriminatory fashion and to submit, within 30 days, an ad distribution plan that complies with the principles set forth in the judgment.

"This is a landmark decision in Latin America that protects free press," said Eduardo Bertoni, former inter-American special rapporteur for freedom of expression. "It is the first time that a Latin American supreme court, using the standards established by the inter-American system, found that the media has legal protection against arbitrary allocation of public advertising. Unfortunately this is a widespread problem in the region."

The ruling is especially significant because of parallels between the Rio Negro case and a pending case involving the newspaper Perfil and the magazine Noticias. The publisher of those periodicals sued the administration of President Nestor Kirchner for consistently excluding them from advertising allocations due to their critical coverage.

In Latin America, as in other regions, governments purchase space in newspapers and other media outlets to announce job openings, public hearings, and other government activities. Possible government abuse of that process to reward friendly media and punish critical voices has been the focus of increasing scrutiny since publication of a joint report by the Buenos Aires-based Asociación por los Derechos Civiles and the Open Society Justice Initiative. Asociación por los Derechos Civiles filed a friend of the court brief in the Rio Negro case.

"The government of Neuquén, as well as the federal and other provincial governments, must pass legislation that establishes transparent procedures to ensure the unbiased allocation of all ad spending," said Darian Pavli, legal officer for the Justice Initiative. "The court's ruling is an important victory for freedom of expression, but now the next step must be taken."

Background Information

 The case began in December 2002, when Río Negro covered a bribery scandal that implicated the governor of Neuquén, and the province withdrew nearly all advertising from the paper. After Río Negro filed a constitutional injunction (amparo) before the national supreme court, the province partially reinstated advertising.

In finding for the paper this week, the court held that, while there is no right to receive advertising as such, the state cannot allocate advertising resources in an arbitrary fashion: it cannot use criteria that are unreasonable or take into account media viewpoints in making allocation decisions. The court recognized that freedom of expression can be violated not only by direct government interference, but also by measures, such as abusive advertising practices, than can indirectly affect editorial freedom and independence.

The court also found that the Neuquen government's retaliation amounted to a violation of freedom of expression, without proof of economic damage to the paper being required. It is ultimately the duty of the judicial branch, said the court, to protect media freedom and a robust democratic debate.

In December 2005, Asociación por los Derechos Civiles and the Justice Initiative published Buying the News: A Report on Financial and Indirect Censorship in Argentina. The report exposes the many subtle yet powerful ways in which government officials wield influence over Argentina's media—from the misuse of government advertising to the exertion of private pressure on reporters and editors. Such abuses occur at both the federal and provincial or municipal levels. In 2006 the two organizations published, in Spanish, Principios Básicos para la Regulación de la Publicidad Oficial, a series of basic principles for the regulation of government advertising to ensure transparency and fairness in the process.