In 2014, when approving the LFTR, Congress imposed on radio and television concessionaires the obligation to “clearly differentiate news information from the opinion of the person presenting it” as a right of the audience. Later, the IFT issued guidelines to enforce the obligation.
“When you’ve gone the wrong way, going backwards is a way forward,” said GK Chesterton, the author of Father Brown’s Tales. Going forward along the same route and making progress are not necessarily synonymous, if we take into account the fallibility of our legislators. When the evidence shows that certain norms have more negative than positive effects, the principle of progressivity should lead us to correct, not to persist in the error.
In 2014, when approving the Federal Telecommunications and Broadcasting Law (LFTR), Congress imposed on radio and television concessionaires the obligation to “clearly differentiate news information from the opinion of the person presenting it” as a right of the audience. . Later, the newly created Federal Telecommunications Institute (IFT) issued guidelines to make the obligation effective.
In the face of criticism and complaints, due to the onerous nature of this burden for the communicators and the null benefit for the audiences, Congress took action on the matter. In October 2017, the LFTR was amended to repeal both the obligation established in article 256 of the LFTR, as well as the IFT guidelines. It also introduced a model of self-regulation for radio and television concessionaires, forcing them to issue a code of ethics and appoint an audience defender.
However, when reviewing an amparo promoted by the Center for Strategic Litigation for the Defense of Human Rights AC, the First Chamber of the Supreme Court of Justice of the Nation (SCJN), ruled for the unconstitutionality of the 2017 reform to the Federal Telecommunications and Broadcasting Law. In the name of the progressive principle of human rights, it reinstated the obligation of radio and television concessionaires to clearly differentiate news information from the communicator’s opinion. It also brought down self-regulation, for a contentious model based on litigation and the threat of sanctions.
The resolution of the First Chamber represents a setback for two reasons: first, because of its paternalistic approach to the hearings and second because, instead of protecting the freedoms of expression and information, it puts more obstacles in their way. The ministers seem to start from two wrong premises.
First, they assume that radio listeners and viewers, as minors, do not have the ability to distinguish between news and opinions. Therefore, they conclude that they need the communicators to point it out to them throughout the newscast. Second, they also seem to assume that news program audiences are mere passive subjects of the media.
They seem to ignore that within radio and television there are multiple options, not to mention those now offered by the Internet and social networks. Along with plurality and competition, the best defense of audiences is remote control.
The most worrying part of the ruling of the First Chamber has to do with its potential inhibiting effect on the expression of critical opinions in radio and television news. Reinstated regulations in the name of audience rights will leave dealers and broadcasters exposed to the constant threat of litigation.
As we have seen in other cases, particularly in electoral matters, restrictions on freedom of expression are used strategically to shield those in power from public scrutiny and criticism. It is they, and not the audiences, who have the ability to deploy litigation activity to silence uncomfortable voices.
*Professor at CIDE.
Dr. Benito Nacif is a professor in the Political Studies Division of the Center for Economic Research and Teaching (CIDE). He was Electoral Counselor of the National Electoral Institute (INE) from 2014 to 2020 and of the Federal Electoral Institute (IFE) from 2008 to 2014.