The Supreme Court has put in black and white the relationship between advertisers and the media and to what extent it is an honest and unscrupulous relationship. The Criminal Court has revoked a ruling from the National Court and has decided to acquit all the defendants in the trial against the magazine Ausbanc and the pseudo-union Manos Liminas. A dozen Ibex companies and banks wanted to put a stop to their way of proceeding and took them to trial for extortion and fraud. They even sat on the bench for an attempt to extort Infanta Cristina through the Nòos case. The Court sentenced them, after going through preventive detention in 2016, to sentences of up to eight years in prison and now the Supreme Court acquits their main perpetrators, Luis Pineda and Miguel Bernard, as well as the rest of the accused.
The sentence not only analyzes the alleged extortion that they had committed but goes further and analyzes the relationship that exists between the media and the companies that seek to advertise. In this specific case, the court recognizes that Pineda and Bernard carried out unethical actions with the intention of exerting pressure. It has been proven that indeed, the director of Ausbanc asked for money from companies, especially banking entities, through advertising in his magazine. If they did not do so or withdrew it, he would act against them through news that was harmful to the company.
The other way they used to pressure was complaints through the union. They filed complaints or complaints for allegedly fraudulent actions by the entity in question. If they reached a financial agreement, they withdrew it and if not, the judicial processes continued.
For the Supreme Court, the pressures that Pineda actually used in his negotiations – “even though they may be reprehensible at the level of ethical assessment” – do not meet the requirements of intimidation, coupled with violence, that is necessary to be able to convict for a crime of extortion.
To begin with, the speaker of the ruling, Judge Leopoldo Puente, makes a clarification: “human relationships, including commercial ones, are often not presided over by feelings of clean solidarity or altruism.” As he explains in the resolution, in a negotiation a seller will not sell his merchandise at the price he would like nor will the buyer sell it to the buyer he would like. There is always an agreement between both parties.
In his opinion, in this specific case, the banking entities knew that if they advertised on Ausbanc they would obtain favorable news, and that is why they did it. If when advertising was removed, due to one interest or another, unfavorable news appeared, they had judicial tools at their disposal to stop it, as long as it was false.
“The exercise of certain pressures, aimed at influencing the will of the counterparty, is rarely missing,” the ruling states. The magistrates emphasize the pressure relationships that exist in many areas of society:
“It puts pressure on the home seller, ensuring that if the proposed price is not accepted in a short period of time, it will close the deal with other possible interested parties (real or imaginary). There is pressure from the home buyer who, aware of the seller’s need for liquidity, assures that he will withdraw from the negotiation definitively, even if that was not his intention, if the seller does not agree to a substantial reduction. It puts pressure on the financial institution when it informs its depositors that it will charge them commissions for the management of their accounts in the event that they do not deposit their payroll into one of them. It puts pressure on the newspaper, which, dissatisfied with the meaning of the articles by one of its collaborators, warns him that if he does not get back on track, he will stop hiring his services. The manager (coach, players) of a football club puts pressure when he systematically refuses to grant interviews to a certain media, angry at the criticism he is subjected to, even knowing that a very substantial part of the listeners (readers, television viewers) ) are followers of that team and who, in this way, will sharply decrease the audience of the medium with which, for one reason or another, they are at odds. Or, closer to the assumption that we are now prosecuting, the advertising company puts pressure when it decides to terminate its advertising contracts, dissatisfied with the editorial line of the medium, whether it has been previously warned or not, even knowing that the withdrawal of those funds “It will lead to a significant decrease in income, to the point of making the continuity of the publishing business economically unviable.”
For this reason, he defends that a negotiation is formed under “certain doses of pressure, soft in some cases, very firm in others.” What a court must do is distinguish whether this pressure can be ethically estimable (it puts pressure on the media that warns its collaborator that if it persists in the dissemination of racially discriminatory messages it will dispense with its services) or if it is ethically reprehensible. “Fortunately, it is not our place to delve into these distinctions here,” they clarify.
However, for these pressures to end in intimidation, one requirement is essential: intimidation. In this matter, the court does not see it. He does not see that there is sufficient physical or verbal violence to consider that it has occurred. He rejects, contrary to the Prosecutor’s Office and the ruling of the National Court, that there was “judicial harassment.” They filed several complaints and complaints against some of the entities. “However, neither the number of procedures initiated is particularly striking (being an association of consumers and users against financial entities), nor could we maintain here that we are facing a kind of ‘judicial harassment’, taking into account that the The actions undertaken had, at least, some basis, to the point that Ausbanc frequently obtained ultimately favorable judicial rulings,” he indicates.
The magistrates insist that the fact that they achieved a conviction against the denounced entities affected their reputation but there is nothing illegal about it.
The witnesses who testified in the trial in which they revered the negative information that Ausbanc published if the advertising was withdrawn, the Supreme Court is not so compassionate towards the entities. “Only from an extreme and touching naivety could it be argued that the editorial line of a news outlet is impermeable to the commercial ties it may maintain with the person affected by the news,” he emphasizes.
“By this we mean that it was not even necessary to verbalize that the financial entities that collaborate commercially with Ausbanc (contracting advertising or other services with it) could reasonably expect to be provided in the medium, in this or another, with a more informative treatment. kind,” he says.
In fact, the ruling of the National Court referred to a case in which the representative of one of the affected financial entities “complained bitterly” that, despite being an advertiser, he was not being “well treated.”
The Supreme Court challenges this practice. “It goes without saying that, in principle, this should not be the case: the informative treatment of a media outlet with respect to news that is of general interest should be immune to the circumstance, for example, that the news of “The case in question affects one of its main advertisers, without whose economic contributions, by hypothesis, the medium could not survive.”
That said, the court makes a harsh criticism of the media by recognizing that both they and advertisers know that “that is not exactly the case.” “We readers (listeners, viewers, etc.) understand it equally without difficulty. For this reason, it is also easy to understand that the publication of a magazine whose fundamental objective was the dissemination of information linked to the world of finance could not exactly be considered the most reliable information platform when the vast majority of its advertisers were, precisely, some of the financial entities that are the protagonists of that information,” he emphasizes.
The Criminal Chamber delves deeper into the issue and analyzes how some of the witnesses “had no qualms in pointing out that, as their company was dissatisfied with the informative treatment given to it by Ausbanc publications, it resolved, in the legitimate exercise of its right, to terminate the advertising contracts that linked him to her.”
For this reason, the magistrates insist that it has been said so many times that “the independence of the news medium requires, as a necessary, although not sufficient, condition, that it not essentially depend on the financial contributions of one or more of its advertisers.”
The sentence that is now revoked was considered as proof of intimidation that after withdrawing the advertising, as happened in the BBVA case, Ausbanc carried out a smear campaign. “The greater or lesser relevance of the news published, always questionable, and the intensity or repetition with which they are disseminated, is part, in principle, of the free exercise of freedom of information. The truth is that, surely because of this, neither for one issue nor for another did the affected entities resolve to exercise any legal action against Ausbanc or personally against Luis Pineda.”
What the court says is that the entities affected by this news could have gone to court to stop this type of information and they did not do so. In fact, this case started with an anonymous complaint to the Economic and Fiscal Crimes Unit (UDEF) of the Police but not due to a prior complaint from any entity.
“What is notable is that several of the supposedly extorted companies are part of the Ibex 35 and almost all of them, at the time the events occurred, constituted financial entities of significant economic magnitude. These are powerful companies that consequently have, to achieve their goals, specialized legal services and sufficient financial coverage to face civil or criminal actions with full guarantees against the publication of information that could result in them, in any sense. , unduly harmful. And the same to decide in a reasonably free way, without other conditions than those inherent to all business activity, in which publications or in which media they preferred to advertise, also having, as has been said, the robust possibility of reacting legally against any false information that could affect them,” he concludes.
