El monopolio de información extranjera

Abstract

1. The present paper draws attention to an important question concerning Information Law: the granting of an adequate juridical regime -through the application of just criteria relating to information- in the case of the diffusing activity of foreign agencies operating on national soil. More precisely, the author examines the monopoly with regard to foreign information which is contemplated in Article 49 of the Spanish Ley de Prensa e Imprenta of 1966, still in force today. The study of the antecedents in relation to the elaboration of the legal precept praves, without a shadow of a doubt, that the configuration of the monopoly was, aboye all, a political decision and not so much a juridical ponderation. 2. The most important problem related to the monopoly is to be found in the determination of its object. The author undertakes this task in agreement with two separate criteria: with regard to the source and with reqard to the subject matter. In this manner, the conclusion is reached that the object of the monopoly is limited by boundaries from the starting point of the technical notion of news in its most restricted meaning whenever the news bears a strong measure of foreign creation. 3. The monopoly, according to the author, is conceived within the Ley de Prensa as a power that genuinely pertains to the State. This fact situates the Public Administration in the position of holding titular rights over the distribution on national soil of any news stemming from foreign sources; this power as exercised by the Public Administration can either be reserved or delegated to others. According to the manner in which the monopoly presents itself, the Public Administration disposes of the faculty to choose either formula; in any case, if the delegation of exercise ceases for any reason, the right reverts wholly to the Administration. 4. In order to justify the monopoly, two types of reasons have usually been put forth. Some derive from the concept of the so-called -informative sovereignty», others from the principie of nationality which in relation with the previous concepts informs the entire Spanish law regulating the press. The author examines the scope and consistency of these fundaments from the critical perspective offered by either the supranational freedom of information or the doctrine of the right to information. He then arrives at the conclusion -among other points- that informative sovereignty does not correspond to the State as organizatiun but rather to the State as community. Nor can it be understood as a feudal power over information, nor as a constituent source of the rights which correspond to individuals within the field of information. Neither can it be understood as the title holding of an exclusive and excluding right with the maximum faculties of disposal. of the State to set up guidelines and to ordain the matter within an adequate