Mass Media – Advertiser/Sponsor joint liability and damages arising therefrom

At present, there is expert discussion on the legal nature of business conducted by broadcasters, which clearly falls into the category of “services”. Likewise, this notion has been laid down in Argentina’s Broadcasting Act No. 22,285 (Ley de Radiodifusión). The wording of this statute expressly refers to “services” provided by mass media.

In turn, as regards “liability for damages”, Section 4 of Act No. 24,999 provides that Section 40, Title X of Consumer Protection Act No. 22,240 (Ley de Defensa del Consumidor) include the following paragraph: “Should any damage caused to a consumer arise from defect or risk affecting the nature of any chattel or the provision of any service, its producer, manufacturer, importer, distributor, supplier, seller, and any other person who has posted his/her brand name on such chattel or service shall be held liable therefor. . . There shall be joint liability, notwithstanding any recovery actions that may be brought in court. Total or partial disclaimer shall only apply to any person evidencing that he/she is alien to the cause of such damage.”

The foregoing two laws combined with the provision reading “The stricter the duty to act in a prudent and wholly knowledgeable manner, the greater the obligation resulting from the potential consequences of factual events”, as contained in Argentine Civil Code Section 902, entail that the advertiser/sponsor who “posts his/her brand name” (i.e., who advertises a product or service) on a specific radio and/or open/cable TV show where any harm (arising from, inter alia, libel and slander, mental distress) is caused to third parties while the show is on the air, might be held jointly liable and legally obliged to pay damages therefor, “notwithstanding any recovery actions” he/she may be subject to, depending on the degree of liability applicable to those who share responsibility vis-à-vis the injured party.

Shame and scandal aired on several radio and TV shows has aroused interest in the full force and vigour of such Civil Code provision, thereby encouraging fruitful discussion on the scope of joint liability imposed on advertisers/sponsors pursuant to the Consumer Protection Act in cases relating to damages arising from activities conducted while advertiser-sponsored shows are on the air.

Although we have traced some critical opinions and technical studies, specifically bearing on violence, and several government agencies have issued resolutions along the same lines (e.g., the Special Report for the Two-Chamber Commission submitted by Argentina’s Ombudsman dated August 05, 1999, and Resolution 3511/97 also published by said Ombudsman’s Office two years before), so far the discussion has largely been academic and more driven to notions such as corporate responsibility, government enforcement powers, and broadcaster’s duty to exercise reasonable care in managing available freedom and undertaking expected responsibility accordingly. Anyway, legal discussion has basically been confined to the restricted context of penalties imposed by the government regulatory agency (Federal Court of Appeals, Administrative Matters, Chamber V, in re: “Radiodifusora Buenos Aires S.A. c/ C.O.M.F.E.R.,” June 18, 2002.)

Now discussion lies in the field of property liability, which implies thorough analysis of each case, since one should not ignore that statutory rules empower the injured party to file a complaint for damages on the grounds of joint liability. All this focuses discussion on the original cause, actual occurence, and true assessment of the relevant damage.

As a result of such discussion, some advertisers have deemed fit to restate the terms and conditions of their standard advertising agreements. Now they have included much more severe guidelines as to the attitude expected from advertiser-sponsored radio and TV shows, risk limits, and even termination covenants in case of deliberate infringement of third-party rights, particularly in connection with sensitive issues such as privacy, libel and slander, religion, minority, mental distress, and the like. On many occasions, all these rights have been protected by courts and infringers have been held liable to pay compensation for damages.