Direito à comunicação na Argentina e no Brasil: princípios e técnica da ponderação no controle de constitucionalidade da Ley de Medios e da Lei de Imprensa

Abstract

The media are instruments that exert considerable influence on the political, economic and cultural fields. The dimension of its importance demands from legal systems specific regulations which give them a role towards public interest. At the same time, the media are an object of dispute between the society antagonistic political projects. This paper seeks to contribute to legal debate on the right to communication, specifically on media activity regulation. We start from the comparative analysis between decisions of the Corte Suprema de Justicia de la Nación Argentina (CSJN), that in special proceedings for declaratory action of unconstitutionality, recognized the constitutionality of Ley de Medios, regulatory framework for audiovisual communication in the country, and the Supremo Tribunal Federal (STF), which, in ADPF 130, declared the non- receipt of the Press Law. In both lawsuits, it was possible to realize the conceptual, political and legal influences that prevaled in each court. The CSJN, through the weighting technique, confronted the principles of property rights, alleged by the applicants of the contestation, and the collective freedom of speech, right declared as objective in the Ley de Medios. The Argentine Court assigns greater weight to collective freedom of speech, showing alignment to the principles of self reliance, guiding paradigm of communication field. The STF, by its turn, confronting the freedom of press to the personality rights and the State regulatory activity, gave prevalence to the first. However, despite the majority decision for ADPF 130´s approval, disputes concerning the grounding were raised. The lawsuit trial criated a legislative gap on the appliance of the right of reply, and forwarded the media activity deregulation process, which is part of the free flow of information proposal, paradigm that reflects the idea of free market to the media field.