New communications law draws international criticism: will it muzzle a free press or democratize it?

Editor’s note: The following is a critique of Ecuador’s new communications law by the Knight Foundation’s Journalism in America blog. It reviews the components of the law, with personal commentary from Carlos Lauría, senior program coordinator in the Americas for the Committee to Protect Journalists, and César Ricaurte, director of Ecuadorian NGO Fundamedios. The bill was passed by Ecuador’s National Assembly June 14 and signed by President Rafael Correal June 19. It takes effect Monday, June 24.

It took less than 30 minutes for the National Assembly to approve one of the most controversial and restrictive laws for the press in Ecuador.

With 108 out of 137 congressmen representing the ruling party, the new Organic Law on Communications was approved on Friday, June 14 by an overwhelming majority and without debating any of its provisions — not even the ones that were added in the last moment.

The law, a project that was left pending during the last legislative session, represents a triumph for President Rafael Correa, who has trumpeted the law as an initiative that will democratize media, strengthen freedom of expression and promote “a good press” in the country. The congressmen that supported it have called it “historic” and “just and necessary.”

But several private media outlets in Ecuador and freedom of expression advocates have sharply criticize it, believe its effects will be exactly the opposite to the ones it touts, and are already calling it a “gag law.” The Inter-American Press Association said the law represents a “grave setback for freedom of the press and expression,” the Colombian Association of Newspapers and Informative Media (Andiarios) called the document “the final stab” against freedom of expression in the country, and, on Wednesday, Frank La Rue, the United Nations’ Special Rapporteur on freedom of expression, described some of the law’s provisions as “unacceptable.”

“I also reiterate my concern over the fact that the law was not submitted to a broader debate with society’s other actors, including journalists and media outlets,” said La Rue in a press release. “I respectfully recommend the President of the Republic, Mr. Rafael Correa, not to sanction this law and instead send it back to the Republic’s Congress so it can be discussed more broadly before its approval.”

The law was created during the last legislative session, but even though it was brought to the floor for debate, it was not submitted for voting and remained as a pending project. Back then the ruling party had 61 representatives in the National Assembly and did not have the votes necessary to approve the law without opposition. This year, the ruling party’s majority was able to block requests for new debates and passed the law without any setbacks.

“This is the final step in the deterioration of freedom of expression in Ecuador during Correa’s administration,” Carlos Lauría, senior program coordinator in the Americas for the Committee to Protect Journalists, told the Knight Center for Journalism in the Americas. The law “will undermine journalists’ ability to criticize and investigate, but it will also limit the citizens of Ecuador’s ability to receive public interest information. The law makes it clear that one of Correa’s objectives is to silence the government’s critics.”

Here’s a more detailed description of some of the law’s provisions along with comments from Lauría and César Ricaurte, director of Ecuadorian NGO Fundamedios.

1. Ethics: Even though the law calls media outlets to create their own codes of ethics, the law asks them to “consider […] minimal rules” like “respecting people’s honor and reputation” and “being careful that headlines are coherent and consistent with news content.” The law establishes that citizens can file a complaint when media outlets breach the codes of ethics.

Lauría said this provision goes against international standards like those established within the Inter-American Commission on Human Rights’ declaration on the principles of freedom of expression, which states that “journalistic activities must be guided by ethical conduct, which should in no case be imposed by the State.

2. Media lynching: Article 26 of the Communications Law prohibits what it described as “media lynching,” or the “dissemination of infomation in a coordinated and reiterative
manner […] with the purpose of discrediting or harming the reputation of a natural or legal person.”

Ricaurte said this article was one of the new provisions that was added into the final version of the law without congressional debate. There is no legal precendent for this concept in any other country’s legislation or international treaty, he added, saying he believed this article will become a notable obstacle for future journalistic investigations.

“If you accuse or investigate a public official of corruption, he or she could just as well accuse the media outlet of media lynching,” Ricaurte said.

3. Media workers’ rights: The law protects the right to freedom of expression and opinion, and it prohibits prior censorship. It also establishes journalists’ right to protect their sources and information revealed to them confidentially.

However, the law states, a journalist’s right to protect his sources “does not exempt him from ulterior responsibility.”

Lauría criticized these provisions, saying they were at odds with other items within the law that placed limits on journalistic practice.

“It seems to me that the declarations that the law makes regarding respecting freedom of expression and prohibiting prior censorship make no sense,” he said. “How can these provisions that sound so progressive make any sense when print and audiovisual media outlets won’t be able to report freely and will be subjected to the strict control of an organism capable of persecuting them?”

4. Ulterior responsibility: The law states that all persons have the obligation “to assume the administrative consequences of disseminating content that harms the rights established by the Constitution” and that “media outlets will be subject to ulterior responsibility in the administrative, civil and penal spheres.”

The document also makes media outlets responsible for the comments made by anonymous users on their websites. It also requires them to publish or broadcast replies to their stories when these affect a person’s “dignity, honor or reputation” within 72 hours after a complaint is received. And any correction must appear “with the same characteristics, dimensions and in the same space, section and schedule” the original story received.

5. Oversight mechanisms: The law orders the creation of three new agencies: 1. The Council for Regulation and Information & Communication Development; 2. A a non-binding advisory council — composed by representatives from private media outlets, citizens’ organizations, communication academics and students — which will offer guidance for the first agency; and 3. The Superintendent’s Office for Information & Communication, a “technical agency for oversight, auditing, intervention and control” with the ability to produce sanctions, investigate complaints and enforce the Communications Law.

Ricuarte criticized the law for not clearly establishing how these agencies will carry out their responsibilities since it charges these very institutions with creating their own mechanisms and does not specify what type of sanctions they will be able to produce.

It’s an “absolutely bureaucratic, obscure and ambiguous [system] that leaves plenty of room for arbitrary acts,” Ricaurte said.

6. Information as a “public good”: Article 71 describes information as a “public good” and social communication as a “public service,” definitions that worried Ricaurte.

Information “goes from being a fundamental right to a public service; therefore, it becomes susceptible to any kind of regulation from the State,” he said.

7. Public defenders: In two paragraphs the law states that national media outlets “will have by obligation” a public defender that will be chosen in public contests. The law does not specify what the public defender’s duties will be, reason why Ricaurte did not discard the possibility that the provision might be used to intervene directly in the activities of the country’s newsrooms.

8. Equal distribution of frequencies: The law establishes that 33 percent of all frequencies in the radioelectric spectrum will be allocated to public media outlets, 33 percent to private media outlets and 34 percent to community media outlets. According to the document, the new balance will be reached by assigning the rest of the available frequencies accordingly, but also by redistributing the frequencies that may have been “obtained illegally” or aren’t following the law.

“In any case, the distribution of frequencies will prioritize the community sector until the equal distribution established in this article is obtained,” the law states.

For Ricaurte, the law limits the growth of any individual sector and multiplies the state’s media presence.

“State media outlets will now have the same amount of frequencies that private and community outlets do,” Ricaurte said. “In the Ecuadorian context, that’s essentially the creation, if not of a monopoly, of a forceful state hegemony.”

Credit: The Knight: Journalism in the Americas; https://knightcenter.utexas.edu/blog. Photo: Ecuador’s National Assembly before the vote on the communcaiton law.