Since first being passed in December 2014 – and even before that – Law 19.307 on the Regulation of the provision of Radio, TV and other Audiovisual Telecommunication Services, popularly known as the "Media Law"1, has been the subject of several critics. Even once passed, 28 unconstitutionality actions were filed before the Uruguayan Supreme Court of Justice. The first judgement was issued on April 5th, and it declared some of the challenged articles as unconstitutional2. Yet, one of the articles that were challenged by the claimant of this particular action – an international direct broadcast satellite service provider – was not declared unconstitutional but was explained not to apply to the latter.
Not null but not applicable either...
Indeed, among many other articles challenged by the claimant, article 33 was not declared null, however regarding many of its aspects it was considered not to apply to the claimant by the Supreme Court Judges. Said article regulates advertising aimed at children and teenagers, and among other obligations it establishes that all advertising shall not produce moral or physical prejudice to children, and accordingly its broadcast will not directly do the following to children and teenagers to (i) incite them to buy products or services taking advantage of their inexperience or gullibility, or include misleading advertising, (ii) encourage them to buy the advertised products or services, or promise prices or rewards for new buyers, (iii) be presented in a way that takes advantage of children's loyalty or of their trust, especially on parents, teachers or other persons, or undermines the authority or responsibility of such persons, (iv) announce some form of discrimination, either for race, nationality, religion, age, or undermine in any way human dignity; (v) broadcast any type of non-traditional advertising in children programs.
When analyzing the unconstitutionality regarding the latter, most judges agreed that, it was not unconstitutional regarding the complainant, not because of the article itself, but because the plaintiff did not have locus standi. The foundation to such conclusion was that, even though the local legislator had not made any distinctions, it was obvious for most of the judges that it would be absurd to even try to regulate the advertising content of the channels on the grid, since the content of the same was given to the plaintiff "as is" from its origin, and the Uruguayan legislator has no competence on foreign channels' regulation. Accordingly, it would not be possible for the complainant to modify the content given to it by the channels, being as well out of the Uruguayan legislators' scope of duty the regulation of signals that are produced abroad and merely provided to the complainant for the latter to broadcast in Uruguayan territory. As an example, the judgment sustains that"it would be impossible to regulate advertising that, for example, a channel aimed at children, such as "Discovery Kids," sales to its advertisers, as it is also not possible to regulate the amounts of advertising minutes that such channel, completely alien from the local provider, destines in relation to the programming minutes."
What this implies...
Even though the judges found that their interpretation of the Law was obvious, it was not really what it was intended when the Law was first draft. Certainly, the Government in power at the time of passing of the Law had in mind that this article, as well as the Law as a whole, was applicable to all audiovisual communication service providers – except for internet services -, including paid TV services. So much so, that some of the most relevant signals/channels went to the Parliament in order to try to bring down some of the obligations imposed by the then bill, including this one. Never the answer was this would not apply to foreign channels.
In this context, what this judgment implies is that to this company – and arguably to other companies providing paid TV services - this particular obligation cannot be imposed since, as a principle, the Law that was passed in Uruguay cannot affect nor reach channels/signals produced in and native from a foreign country.
This conclusion of the Supreme Court added to the five articles that were in fact declared null3 have caused the Media Law damage as to its application and regarding its regulation that was delayed by the Uruguayan President until the results of the unconstitutionality actions were known. As to this date, 26 actions remain to be studied4 by the Supreme Court, and from the Government it is to be studied whether to completely derogate the Law and start from scratch or to simply modify some of its articles, and proceed to regulate the Law as is. This story has just started, but all of its players agree on one thing: this judgment was indeed strike one to the Media Law.
2 Note that under Uruguayan regulation unconstitutionality declarations to certain laws only are applicable to the person/entity that filed the action, continuing to be completely enforceable to every other person/entity.
3 Articles 39 number 3, 55, 60 letter C, and 98 number 2 were declared null.
4 On April 11th the Supreme Court ruled in favor of an unconstitutionality action brought by the Independent Party, a political party, that had challenged article 143 on the distribution of free advertising time on election period for political parties according to the amount of votes obtained on the previous election.
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