Government Advertising: legal regulation?
ERNESTO VILLANUEVA
http://proceso.com.mx/
For several years I have insisted from these pages about the need to regulate advertising. Several bills on the subject were also presented at the Congress. Nothing so far has been able to move legislators to step forward and end the system of rewards and punishments applied from the treasury, now exacerbated under which, without explanation, the journals have been excluded from advertising guidelines the administration of President Calderón. Therefore I am convinced that the road would have to exercise judicial control of advertising officer in light of the following arguments.
First. As is publicly known, no law (or federal or state) that regulate the criteria under which government advertising should be allocated to the media. In all organisms, organs and powers of the Mexican state advertising allocation is made under the exercise of discretionary powers of the responsible authority. But the practice of discretion is limited by the law itself that establishes its existence. Thus, doctrinally has been accepted that one of the limits of the discretion lies in the arbitrariness.
The Dictionary of the English Language (RAE) defines the notion of arbitrariness as "act or conduct contrary to justice, reason or law, dictated only by the will or whim." In the field of jurisprudence and doctrine, one of the ways to identify the arbitrariness lies in the motivation, ie, in terms of coherent and logical reasons a decision to exercise the powers of administrative discretion. Another factor justifying judicial intervention is the protection of fundamental rights can be violated by an administrative act is not regulated or discretionary.
Segundo. The exercise of discretion puede ser controlado por la vía jurisdiccional para verificar la legalidad del acto administrativo, por un lado, y, por otro, para garantizar el respeto a la tutela judicial efectiva de los justiciables. Este último aspecto es de importancia significativa al subsumir la asignación de publicidad oficial como parte del contenido de los derechos de libertad de expresión y de información. Así lo han sostenido distintas resoluciones de la Comisión Interamericana de Derechos Humanos y de Cortes Supremas de Justicia, destacando el caso de Argentina.
Allí, la sentencia de la Corte Suprema de Justicia de la Nación –en autos “Editorial Río Negro, S.A. c/ Neuquén, Province s / Amparo action "of September 5, 2007 - provides that:" While there is no subjective right of the media to get publicity officer, the State can not allocate resources for advertising arbitrarily based on unreasonable criteria. Not only the government should avoid actions intentional or exclusively aimed at limiting the exercise of press freedom, but also those who come to the same result indirectly. Indirect acts are, in particular, those that use economic means to limit expression of ideas. The material and technical means, information networks, the extension of the roll, the diffusion international national and even some media, advertising and propaganda, etc., have been inserted to the press in the complex fabric of economic relations which are contemporary enterprises. The distribution of government advertising may be used as a strong deterrent to freedom of expression, obstructing this right in an indirect way. " Based on that precedent, other Argentine courts have issued rulings on the same standard the Supreme Court of Argentina.
Third. In Mexico in recent weeks, the National Human Rights Commission (NHRC) has taken up the argument of the American system of rights protection For human Contralínea magazine, and Recommendation 57/2009 has established that the annual agreement issued by the Ministry of Interior and the Procurement Act "only regulate social communication strategies to disseminate federal government and public policy how procurement should be conducted, but in any case define procedures and objective criteria, clear, transparent and non discriminatory procurement of government advertising, which can ensure equal opportunities among the various media that seek to hire, including Contralínea magazine. This leaves open the opportunity to engage in discretionary practices affecting not only the pluralism of information and public debate, both essential elements of a democratic society, but also infringes the right to equality before considering that the same factual circumstances, apply unequal legal consequences. "
room. For all the above, with the omission of the legislature, a group of periodicals is preparing a lawsuit to allow limit the discretionary powers of President Calderon in advertising allocation. Without reasonable criteria, and to the detriment of everyone, not only narrows the freedom of speech, but the right of Mexicans to cleave sources of information plural, truthful and independent. l
evillanueva99@yahoo.com 
