The unconstitutionality of the General Law of Social Communication

 

ESPECIAL

The unconstitutionality of the General Law of Social Communication

 

I call on the powers of the Union and unity for independent media

 

 

 

 

 

 

 

 

 

Fernando Sandoval

Analyst, Political and electoral

 

 

We are facing an analysis that must have a self-critical sense and true values of progress, job creation and maximum diffusion in all the inalienable principles of a Mexican society that seeks to grow, develop and produce in these modern times.

 

At this time, few media with a true vocation at the service of freedom of expression and in the defense of universal human rights, a law appears that not only violates the constitutional right to create companies at the service of information and absolute impartiality, but above all to the support of thousands of families who live from this process and business mechanism,  of large, medium and small enterprises that not only generate taxes in favor of Mexico's development, but also serve economic support as a fundamental part of socially productive feedback.

 

Shamefully, today, those who unanimously approved this law derived from the Political Constitution of the United Mexican States in Article. 7. "The freedom to disseminate opinions, information and ideas through any means is inviolable." They transgress the right of many.

 

Everyone, absolutely all those representatives of the people who were voted in an election and in a democratic process, even with the plurinominal ones and at the free whim and personal convenience of all political parties, have demonstrated the lack of tact to defend the rights of all Mexicans who generate productivity in this matter.

 

Those who in the plenary session of the Chamber of Deputies, have generated the vote in favor of going against the maintenance of thousands of jobs throughout the country in terms of dissemination, sale of advertising space and information campaigns in all their contexts and in all their assets, must reconsider and claim the true course for all and for those who seek to grow honestly,  hardworking and productive.

 

Who voted in favor of the General Law of Social Communication?

 

At this time it is urgent to generate a setback to the illegality and illegitimacy of a law made in the manner and in favor of the executive power.

 

It should be noted that "the personal wars of the President of the Republic Andrés Manuel López Obrador to entities of various media and communicators are generating social polarization, discontent and social disorder but also administrative and political instability in all the States of the Mexican Republic.

 

No, all media lend themselves to particular claims for the benefit of some. Not all media are the same, and there are media of large chains, medium and small that are starting, that are local and that have their principles and maximum guiding axes that seek to contribute to the aggrandizement of Mexico, in informing, educating and generating consciences and culture with the best intentions.

 

It should be noted that this act of December 27, 2022 "DOF decree modifications to the General Law of Social Communication and the General Law of Administrative Responsibilities, Note N°. 5087 DOF publishes decree modifications to the General Law of Social Communication and the General Law of Administrative Responsibilities • Enters into force tomorrow, Wednesday, December 28 • The head of the Federal Executive must make the corresponding regulatory adjustments within a period not exceeding 180 working days from the publication of this decree; within the same period, the Ministry of the Interior shall issue the guidelines referred to in Articles 4, 25, 28 and 37 of the General Law on Social Communication• The Public Entities, within a maximum period of 120 working days following the entry into force of this decree, shall adapt their legal and regulatory provisions in accordance with it• The provisions that oppose this decree are repealed• In case of commencement of work or of management, the Public Entities will issue their Strategy and Annual Program of Social Communication of that fiscal year to the three months following that their Work Program, or equivalent, has been issued and published• In the local regulations, the transitory provisions conducive to the procedure referred to in the previous paragraph will be established• The expenditures generated on the occasion of the entry into force of this decree will be charged to the budgets approved to the executors of responsible expenditure for the current fiscal year, so no additional resources will be authorized for such purposes Legislative Palace, 27-12-2022 (Notilegis).- The Official Gazette of the Federation (DOF) published in its evening edition of this Tuesday, December 27, the decree reforming, adding and repealing various provisions of the General Law of Social Communication and the General Law of Administrative Responsibilities.

 

And it should be noted that all "the media are guaranteed the full exercise of the development of freedom of expression in the contracting and dissemination of government propaganda, in terms of articles 6 and 7 of the Political Constitution of the United Mexican States ... The legal framework governing the media in Mexico is contained in the Political Constitution of the United Mexican States. The main articles that are related to the mass media are articles 1, 63, 7, 25, 27, 28, 414 section II, 42, 48, 73 and 134.

 

It is important to return to the reference ARTICLE 19 MX-CA in https://articulo19.org/la-reciente-reforma-a-la-ley-general-de-comunicacion-social-mantiene-las-condiciones-para-censura-sutil-y-falta-de-transparencia/ and that is that on December 12, 2022 it was analyzed that "On December 7, the reform to the General Law of Social Communication was approved by a majority vote in the Chamber of Deputies.   (LGCS) as part of the electoral reform package. However, the modifications to the so-called Chayote Law do not substantially change the "unconstitutional state of affairs" declared by the First Chamber of the Supreme Court of Justice of the Nation in 2017 and 2021. Therefore, to this day, it is in the hands of the Senate of the Republic to reverse the discretion in the allocation of official advertising as a means of subtle censorship. The minute that is currently under analysis and discussion in the Senate, does not meet the highest standards in freedom of expression, access to information and official advertising, as is the case  of the Principles on Regulation of Official Advertising and Freedom of Expression of the Inter-American Commission on Human Rights. Likewise, it does not contain basic elements for the regulation of official advertising. 

 

For example, it dispenses with principles such as media plurality, equity, non-discrimination and accountability as guidelines for the allocation of official advertising spending. There is also no difference between types of media (digital, print, radio, television, concessionaires for social use, etc.) and other means of dissemination (outdoor advertising, street furniture, digital platforms, search engines, etc.). It is important to note that it does not consider concessionaires for community social use and those for indigenous social use.  This reform replaces "obligated subjects" with "public entities" so there is a risk that private individuals and legal entities that receive these public resources, including service providers such as production houses, influencers, advertising agencies, digital services or similar, are left out of public scrutiny.

 

On the other hand, it is noteworthy that Article 3. Bis mentions  the type of information that public entities can disseminate, pointing out what refers to "the execution of infrastructure works, provision of public services and development of economic and social programs" (f. I), but does not indicate that they must report in terms of the impact generated by such programs or works to citizens.

 

In the definition of "government advertising" provided for in Article 4, f. VIII Bis, it is set aside that it must be financed with the public budget, labeled specifically for that purpose, by public entities. It expressly states that this type of advertising is not considered "the manifestations of public servants in the exercise of their freedom of expression." It is worrying that this definition gives rise to any public servant – including the representative of the Executive – being able to promote any situation or public servant in contravention of the legislation itself and the standards in the matter.

 

In that same article, paragraph VII indicates the National Register of Media, but does not define it, nor does it detail whether it will include all types of media or will continue to be exclusively a register of print media.

 

Although Article 18 Bis of the reform includes the criteria for assigning official advertising, these remain broad and ambiguous, contravening the orders of the SCJN, which, through its September 2021 ruling, forced the Legislative Branch to outline clear and transparent guidelines and procedures. Thus, the allocation ceilings are not established by means of communication, either of the total budget item or by social communication campaign. As the signatory organizations have documented, the hyper-concentration of social media spending in a few media outlets (practically 50% in 10 corporate ones) is a pattern that continues.

 

On the other hand, in breach of the mandate of the SCJN that expressly prohibited the reference to other legislation, this reform insists on regulating the procedure for allocating expenditure based on the Law on Acquisitions, Leases and Services of the Public Sector (Article 19).

 

Another shortcoming is in the failure to establish parameters, bodies and processes for measuring audiences, rating, print run and impact; Central aspect to build social communication strategies and for the definition of the appropriate means of communication in the deployment of messages.

 

For the measurements in question, it is essential to have independent public technical bodies (such as INEGI) that allow measuring the real reach of the media. However, the reform under discussion incurs the same fault that the SCJN intended to amend, deriving this process to the "Guidelines" that each authority approves and allowing them to freely hire entities that carry out impact studies.

 

The harmful practice of direct allocation of social communication expenditure remains (article 18 bis f.V) and is arbitrarily justified by the need to issue "extraordinary messages", without defining it with precision and clarity in the rest of the regulations (art. 31).

 

However, there are fallacies and idleness in changing the name of the Ministry of the Interior as "Administrative Secretariat" of expenditure, for "Administrative Units" for each of the Public Entities.

 

Even worse, establish a spending limit of the Annual Social Communication Program, which should not exceed 0.1 percent of the Expenditure Budget of the Federation for 2023 that responds to a budget of 8 billion 299 thousand 647.8 million pesos, so the ceiling would be 8 thousand 299 million, leaving all small media out of this labor or service provision item.

 

The third is the express prohibition of using Social Communication campaigns as a means of reward or punishment for the press, although it does not establish the conditions to avoid it.

 

This is sent publicly and for this reason, it is exhorted, the challenge and protection is requested by the referents of the General Law of Social Communication that transgress the rights to obtain a dignified resource, necessary in terms of providing the service of dissemination of information to independent, business and small media of the local order,  Responsible and job creators:

 

To the President of the Republic,

Chamber of Senators,

Chamber of Deputies,

Supreme Court of Justice of the Nation

Governments of all the states of the Federation.

Municipal Governments

All media, printed, television, radio, internet, spoken and disseminated in all media and information mechanisms provided for by law and those not contemplated.

Journalists

Columnists

Essayists

Editors

Publishing

Analysts

Reporters

Photographers

Technical

readership

Subscribers

Private enterprise

Civil and political organizations

People of Mexico:

 

 

 

·  Generate the urgent manifestation to the rejection of this law for the reduction of budget in all governmental areas that serve to contribute to the provision of certain services of each means of communication in the different spaces of the Public Administration.

 

·  Redesign the true purpose of a General Law of Social Communication. each media has its purpose, its objective and its universal and general guidelines of Freedom of Expression, not only as entities and constituted figures but as work spaces that maintain human beings with conscience, principles and universal values based on human rights, ethics and morality.

 

· To urge each and every one of the  representatives of the sovereign people, deputies, senators and different powers of the Union, to evaluate, modify and generate the conditions for the balanced and reasonable maintenance of resources for purposes of maximum dissemination, certainty and impartial information of each and every one of the activities of each and every one of the public officials,  governmental institutions and at all levels of government Federal, State and municipal.

 

·  That all media be organized with the same voice to defend and safeguard the right to work and that is embodied in Article 123 of our Magna Carta, in which "Everyone has the right to decent and socially useful work; To this end, the creation of jobs and the social organization of work will be promoted, in accordance with the law. The Congress of the Union, without contravening the following bases, must issue laws on labor," but never go against a constitutional setback to that established by the constituents.

 

·  Generate jurisprudence before the acts conceived and not foreseen by the deliberate approval of this General Law of Social Communication for the simple fact of restricting the right to provide services to state and municipal governments.

 

·  Execute the real social security plan for independent journalists that President Andrés Manuel López Obrador highlighted and that to date does not exist, because small, local and independent media remain unprotected and helpless.

 

·  Include in housing and social security assistance programs independent journalists who are in regimes as small service providers in terms of dissemination and information, as well as analysis.

 

·  Create and include unemployment insurance for small communicators in the absence of provision of services in the matter due to lack of agreements and provision of services, since we are also a source of family support and we are not contemplated in productive or assistance programs of marginalization or unemployment, among others.

 

Otherwise, we would be in the incongruity published on the official website of the federal government https://www.gob.mx/presidencia/prensa/presidente-lopez-obrador-presenta-plan-de-seguridad-social-para-periodistas-independientes?idiom=es,  since, in full text it maintains that:

 

"The decision has been made to allocate 25 percent of the government's total advertising spending to support self-employed journalists, and to guarantee them social security, health care and other social security benefits."

 

The general coordinator of Social Communication and spokesman for the Presidency, Jesús Ramírez Cuevas, reported that today begins the process to provide social security to journalists who do not have an employment relationship, that is, who work independently in an activity that requires protection, beyond the voluntary insurance scheme that has fewer benefits.

 

He added that the federal government invests 760 million pesos, corresponding to 25 percent of the budget allocated to dissemination campaigns, taking into account that by 2022 it is three thousand 40 million pesos. The proposal was prepared by the Presidency of the Republic, the Ministry of the Interior (Segob) and the Mexican Institute of Social Security (IMSS). It will be the Undersecretariat of Human Rights, Population and Migration of Segob who will administer the fund and deliver it to the IMSS.

 

He reported that there are 41,113 workers who perform journalistic work, according to the National Survey of Occupation and Employment (4th quarter 2022) of the Inegi. 87 percent are paid, that is, 34 thousand 835, and 14.7 percent work on their own, that is, six thousand 028; Of those, 60.6 percent are under the age of 50.

 

"It is a very important task for our society, for democratic life, to know issues of collective relevance; Through journalism, citizens are made known and given a voice."

 

And to date there is no such benefit.

 

It is inadmissible, the lack of respect for the very functions of legislators for trying to regulate and regulate the media when they are independent entities and outside the orders of government but subject to fiscal conditions and like any private company but subject to deliberate claims of this law issued by "whims of the Executive and personal revenge to a few media and information figures to pay for the majority that begins in this area and are found in small enterprises or independent regimes for the provision of dissemination and information services in different information contexts.

 

If this is not the case, all those who are independent, such as voices, analysts, specialists, columnists and journalists from independent media, as well as civil society organizations that have always served and served the present public officials, senators, legislators and those who campaigned are being left unemployed.  They used, used, hired and took advantage to disseminate, their work, their image and their personal interest to reach the position.

 

If all the media do not demonstrate, if these conditions are not generated, we will be complicit in arbitrariness, in a violation of labor law, the right to constitute oneself as a small company, an independent service provider and the right to freedom of expression and information without conditions and without gags.

 

It's now! Already!

 

 

 https://www.diputados.gob.mx/LeyesBiblio/ref/lgcs.htm 

https://www.google.com/search?q=mordazaley&tbm=isch&ved=2ahUKEwjdjKPHtvL8AhVvLt4AHQsnANcQ2-cCegQIABAA&oq=mordazaley&gs_lcp=CgNpbWcQAzoECAAQQzoFCAAQgAQ6CQgAEIAEEAoQGFDeB1iUFWCPFmgBcAB4AIABvAGIAZ4FkgEDMC41mAEAoAEBqgELZ3dzLXdpei1pbWfAAQE&sclient=img&ei=UVzZY52gF-_c-LYPi86AuA0&bih=657&biw=1366&rlz=1C5CHFA_enMX906MX907#imgrc=d7iM4TBAPMX23M

https://aceproject.org/main/espanol/me/meb05.htm

https://www.google.com/search?rlz=1C5CHFA_enMX906MX907&sxsrf=AJOqlzU98SPzokXJtZzTr2DRnIJjAvBPxA:1675186487548&q=Leyes+que+regulan+a+los+medios+de+comunicaci%C3%B3n+en+M%C3%A9xico&sa=X&ved=2ahUKEwiMgZf8q_L8AhXBKkQIHedWDVAQ1QJ6BAguEAE&biw=981&bih=567&dpr=1

https://articulo19.org/la-reciente-reforma-a-la-ley-general-de-comunicacion-social-mantiene-las-condiciones-para-censura-sutil-y-falta-de-transparencia/

http://dsiappsdev.semarnat.gob.mx/datos/juridico/leyes/LG_COMUNICACION_SOCIAL.pdf 

http://www5.diputados.gob.mx/index.php/esl/Comunicacion/Boletines/2022/Abril/19/1658-La-Camara-de-Diputados-aprobo-por-unanimidad-reforma-a-Ley-Federal-de-Telecomunicaciones-y-Radiodifusion#:~:text=%2D%20La%20C%C3%A1mara%20de%20Diputados%20aprob%C3%B3%2C%20por%20unanimidad%20de%20481%20votos,y%20recepci%C3%B3n%20de%20ideas%20e