After 10 years, judge rules that El Comercio has monopoly in print in Peru; he is penalized soon after

After 10 years of legal proceedings, concentration of the press market has been dealt a blow in Peru. A Lima court judge ruled On July 19, a judge from a Lima court ruled that the 2013 purchase of Grupo Epensa by Grupo El Comercio creates a monopoly that threatens the constitutional right to freedom of expression and opinion, and ordered the transaction to be annulled.

El Comercio is the country's largest print media conglomerate and, at the time of the purchase, Grupo Epensa was the second largest.

At its core, the ruling states that “ownership in media markets is conditioned by the aims of freedom of expression: greater plurality of agents and less concentration of market power. To be compatible with the right to a free flow of news and thought, media and the companies that own them must be conditioned to the requirements of such freedom and, therefore, media owners should not be able to exercise their ownership attributes in an unlimited manner, as they would in any other economic sector.”

Although Grupo El Comercio has already filed an appeal and the case is yet to be heard by higher courts, the ruling has been deemed historic by Peruvian lawyers who work with human rights and freedom of expression issues. The decision — which is based on a previous ruling on the case by the same judge, Juan Macedo, from 2021, which was later annulled for procedural reasons — is based on an extensive review of Peruvian constitutional law, international standards on freedom of expression and academic literature on media concentration and press pluralism. 

Not everything, however, is cause for celebration for those who brought the case — eight citizens, including journalists, editors and media entrepreneurs. Three of them are linked to newspaper La República, which since the purchase has become the second largest in the country. 

The 10-year deadline for a judgment to be issued was considered too long, and two of the plaintiffs died during this period. In 2021, the plaintiffs protested against the delay to the Inter-American Commission on Human Rights (IACHR), which accepted their claim at the end of last year. In addition, several additional economic transactions have taken place in the meantime that make a return to the previous state of affairs unlikely.

As first reported by the news outlet Hildebrandt en sus trece, claiming the trial had taken too long, the Peruvian National Board of Justice (JNJ, by its Spanish acronym) dismissed Judge Macedo. The formal notification of the decision, which was made on April 11, happened on July 21, two days after the ruling against El Comercio. This radical measure against a magistrate who had been a member of the Peruvian judiciary since 2002, known for difficult decisions, has led people following the case to suspect retaliation.

Image of the page of an article from the weekly "Hildebrandt en sus trece" covering the removal of Judge Juan Macedo by the Junta Nacional de Jueces in Peru

Article from the weekly "Hildebrandt en sus trece" reporting on the removal of Judge Juan Macedo by the Junta Nacional de Jueces in Peru (Credit: Hildebrandt en sus trece/Courtesy)

Because he condemned El Comercio, but also took too long to hand down the sentence, Judge Macedo ended up in trouble with both El Comercio and the plaintiffs from La República, said Eloy Marchán, the journalist from Hildebrandt en sus trece who was the only Peruvian journalist to report the dismissal.

“I can find no other explanation. It’s retaliation,” Marchán told LatAm Journalism Review (LJR). “What is unclear to me is whether the decision of the Peruvian National Board of Justice seeks to look good with El Comercio or with La República, or perhaps, strategically, with both.”

The background

Founded in 1839, publishing group El Comercio held 49% of the commercial sales of newspapers in Peru when, in August 2013, it purchased the majority of the shares in Empresa Periodística Nacional (Epensa) for $17 million. At the time,  Grupo Epensa held 29% of the country's newspaper sales and La República held 17%. With the transaction, El Comercio now owns 78% of the Peruvian newspaper market.

Before the sale was confirmed, La República tried unsuccessfully to buy Epensa. As LJR reported at the time, several players claimed that the acquisition by El Comercio would harm the plurality of information

According to what La República told LJR at the time, the purchase would lead to "a very high concentration in the sale and marketing of newspapers, which would be contrary to the country’s constitutional order and that seriously affects the print media market in the country."

As a result, in November 2013, eight Peruvian journalists and media entrepreneurs filed a request for the purchase to be annulled. 

In the document, they said that "the judge must keep in mind throughout the process that this is a debate between plurality and diversity versus concentration and monopolization. In other words, between democracy and informational totalitarianism."

The lawsuit was a request for amparo, the main mechanism for protecting Peruvians' constitutional rights. Peruvian legal doctrine understands that, as these are urgent cases, the protection it offers should be granted quickly, simply and effectively, without requiring intense corroboration activity.

The decision

The case, however, fell into the hands of Judge Macedo, of the 4th Constitutional Tribunal of the Court of Lima, known for his thorough and fearless rulings against powerful interests, which have even cost him death threats.

Macedo's first ruling on El Comercio, similar in content to the current one, came in July 2021. It was canceled in October of the same year due to a procedural issue unrelated to the merits of the ruling — a successor had not been appointed for one of the plaintiffs who died in 2019.

The new ruling, which updates the previous decision and makes an extensive bibliographical review of case law on the subject, is based on the understanding that, in the words of the judge according to his interpretation of the Peruvian Constitution, "freedom of expression constitutes part of the public order of democracy and the basis for the formation of the political opinion of citizens, which requires the greatest pluralism in media and the widest circulation of ideas and information."

In view of this, the sentence states, "Monopolies and oligopolies in media ownership [constitute] an example of violation of freedom of expression by indirect means committed by private companies.”

Judge Macedo cites an academic study by Alan Albarran which states that “markets are highly concentrated if the top four firms manage to control more than 50% of the audience,” and observes that “the leadership and dominance of Grupo El Comercio (...) exceeds all limits of concentration in the markets of other Latin American countries.”

Regarding the region, the decision states that "in Latin America, populations have a great diversity of social, economic, ethnic, linguistic, etc. characteristics, so the need for them to receive pluralistic information requires the presence of diverse and even divergent positions. And, although it is not enough for there to be a large number of news outlets, the implicit requirement is evident: It is unacceptable for there to be few media or media concentrated in a few hands (oligopoly).”

The ruling pays close attention to paragraph 2 of article 61 of the Peruvian Constitution, which states: “The press, radio, television and other means of expression and social communication; and, in general, companies, goods and services related to freedom of expression and communication, may not be subject to exclusivity, monopoly or monopolization, directly or indirectly, by the State or by private individuals."

Although there is legislation stipulating what constitutes a monopoly on radio and TV, the same does not apply to the written press. In this regard, the judge criticized the Peruvian state for not having created legislation in this regard, which, in his opinion, violates an obligation undertaken in the Constitution and in international treaties: “The Peruvian State FAILED TO COMPLY with its international obligation to guarantee freedom of expression. [This is a] legislative and constitutional OMISSION,” Macedo wrote. 

Because of these and other arguments, in a 201-page decision, the judge declared the sales contract null and void.

Reactions to the ruling

The El Comercio group has not commented on the ruling and has not responded to LJR requests for a statement. 

At the time of the 2021 ruling, the group said in a statement that “to set limits to the media on the basis of their readership (i.e. of users’ information preferences), is a serious attack on the press and citizen’s right to choose.” The group has already lodged an appeal against the ruling, which could be heard at a court of the second instance and possibly also in the Peruvian Supreme Court.

The decision was celebrated by the plaintiffs. “We won! The amparo action filed almost 10 years ago, for media monopolization in violation of Article 61 of the Constitution, obtained its second victory in the same instance,” said journalist Rosa María Palacios, one of the plaintiffs, on X, formerly Twitter.

César Bazán Seminario, a lawyer in the area of Constitutional Litigation and Indigenous Peoples at the Instituto de Defensa Legal (IDL), one of Peru's leading human rights NGOs, also had a positive assessment. IDL took part in the case as the legal guardian of one of the deceased plaintiffs.

"It is a positive decision that ratifies the decision taken some years ago. There is a concentration of media and there is a need for neutrality. It is a well-founded decision to protect fundamental rights. The decision offers Peruvians the opportunity to better exercise their informative freedoms, so that there is plurality," Bazán told LJR

Palácios — who has written several times about the delay in the case — did, however, criticize the length of the sentence.

“If you don't make a decision, it favors one of the parties. First, it took seven years, and then three years. A lot of things have happened, which make it impossible to return to the previous state," Palacios told LJR. "Of the eight plaintiffs, two are dead. Of those six, two have already retired. There are four left. I'm the youngest and I'm 60. How many more years are we going to wait?"

Among the "many things" that have happened in Peru since then are, for example, the end of Ajá and El Bocón, two newspapers that El Comercio bought from the Epensa group. In January, El Comercio sold Peru21, another newspaper. These transactions make it more difficult to reverse Epensa's purchase.]

After obtaining a decision from the IACHR on the matter, Palacios hopes that the Inter-American Court of Human Rights will evaluate the case "We want a ruling to create a leading case for all of Latin America."

Macedo's defense

LJR heard Juan Macedo's version of events. The now-dismissed judge said that, since he took up the judicial post in 2002, he had a different understanding of the job from most of his Peruvian peers, because he felt that "A judge should not delegate his work to clerks and assistants. The constitutional principle of the judge stipulates that citizens need the judge to give justification not only from his head, but also from his own hand."

This caused him to suffer disciplinary sanctions several times, including two two-month suspensions, in 2008 and 2013. In 2010, Macedo told LJR, he was even dismissed in one such case, but managed to overturn the decision. Since then, he has relaxed his principle somewhat, seeking to “combine that work of not delegating with the work of delegating.”

According to Macedo, when the amparo lawsuit over the media monopoly began in 2013, he immediately understood that it was a complex case and a challenge, and he told the parties' lawyers that the ruling could take a long time, "and they didn't say anything."

The media repercussions of the case, according to Macedo, made the pressure for a ruling stronger, but even so he resisted in the face of other cases that demanded equal attention, such as a trial on marriage equality and also on the labor outsourcing law.

Image of the page of an article from the weekly "Hildebrandt en sus trece" covering the removal of Judge Juan Macedo by the Junta Nacional de Jueces in Peru

Former Peruvian Judge Juan Macedo, who handed down a verdict against newspaper El Comercio and lost his job two days later, is now appealing and trying to regain his position (Photo: Hildebrandt en sus trece/Courtesy)

"This [El Comercio] case had media repercussions right from the start," Macedo said. "I had an ethical dilemma: should I abandon all the cases in my office to give preference to this one and avoid more complaints? But I said no, because there are other cases that require equal attention. I wanted to be independent, even in the face of the media power of the plaintiffs themselves" 

The decision that cost him his job was part of a performance evaluation process to which Peruvian magistrates are subjected every seven years. The National Board of Justice only assessed the delay in this case, without going into the merits of the decision. One of the arguments for voting for Macedo's dismissal was “to evaluate the complaint received by the Inter-American Commission on Human Rights and the situation in which it placed the Peruvian State."

After being formally notified on a Friday, the following Monday, July 24, Macedo could no longer work. The judge said that he filed an appeal with the Board to try to get his job back. The response was expected two weeks ago, but the Board itself is currently under political pressure from the Peruvian legislature, whose conservative caucus is trying to oust it.                                                                                                                                                               

Cézar Bazán Seminario, the IDL's lawyer, said that Macedo "has ratified an historic sentence,"by annulling the sale. According to Bazán, JNJ “does not mention that there was a latent risk in this case. The delay is real. However, this judge has issued decisions that other judges have not dared."

Eloy Marchán, the journalist who reported the case, also gave his assessment of the Junta's decision to LJR:

“Most of the arguments are in favor of Macedo and the only objection is for his delay in the newspaper concentration trial,” Marchán said. “I have reviewed Macedo's complete file and I see an atypical judge: He is careful in the development of his argument, he is not afraid to rule against large companies or powerful associations. He does have a problem with time and takes a long time to issue his rulings.”

Marchán said the judge was left in limbo, facing hostility from Peru's two largest newspapers. 

“El Comercio had a grudge against Macedo for ruling against them twice and ordering the annulment of the purchase of Epensa, which triggered a concentration in the newspaper market. La República was not happy with Macedo's work, not because of the decision, but because of the delay in making it.”

The consequences of Peru's media concentration, meanwhile, are being felt across the country.

“The consequences of the media concentration that originated with the purchase of Epensa are currently being seen: massive layoffs of journalists, closure of newspapers and magazines, generalized discrediting of the media, and deference towards Dina Boluarte’s government,” Marchán said.

(Banner photo: Smarthar22, license CC 4.0)