Mixed bag for freedom of expression in Ecuador’s new Communications Law

Jochai Ben-Avie contributed to this post.

On June 14, 2013, after almost four years of discussion, Ecuador’s National Assembly passed a new Communications Law, providing a legal framework for the fundamental right to communications considered in several articles of the Constitution of 2008.

While this new legislation represents a great advance for internet access, along with a more equitable distribution of public spectrum that can bring more diversity and pluralism to public media, it also contains some provisions that represent a threat to freedom of expression.

Right to access information and an equitable spectrum allocation
Article 35 of the new law establishes the right to access information and communication technologies, asserting that “every person has the right to access, learn and use information and communication technologies to boost the exercise of their rights and development opportunities.”

Article 106 provides that “the radio spectrum intended for operation of radio and broadcast television will be distributed equally into three parts, reserving 33%… for the operation of public transport, 33% for the operation of private media, and 34% for community media.” The article continues to emphasize that “in all cases, the distribution of frequencies will prioritize to the community sector to achieve the equal distribution established by this article.” This equitable distribution of spectrum frequencies is a significant step forward in ensuring media pluralism in Ecuador, and will likely have a positive impact on the regulatory landscape there.

Limits on the free press
However, there is also a dark side to this law, especially for freedom of the press. For example, under Article 5, companies OR public, private, or community organizations OR those who hold a license for a radio or television frequency AND who offer mass communications to the public in print form or through radio, television, video, or audio subscription services AND whose content can be generated or replicated through the internet will be considered social media companies for the purposes of this law.

While this provision is very poorly written, our interpretation is that media companies or organizations, whether public, private, or community are bound by the same regulations on their Twitter accounts as they are on, say, their radio station. But the provision’s vague wording leaves it open to a far broader interpretation.

So what are these regulations? Article 18 starts off strongly with the prohibition of censorship “by an authority, public officer, shareholder, partner, advertiser, or any other person [who] in the exercise of their duties or in their quality reviews, approves, or disapproves content prior to its dissemination by any means of communication in order to obtain an illegal personal benefit, to favor a third party, and/or to harm a third party.” Banning this kind of censorship is a big step forward for Ecuador.

However, Article 18 goes on to say that the media has a duty to “cover and disseminate facts of public interest.” Deliberate and recurrent omission in the dissemination of issues of public interest constitutes censorship under the law, which is subject to fines and administrative sanctions by the newly-created Superintendent’s Office for Information and Communications. It’s unclear what purpose the Superintendent’s Office will serve other than to monitor and punish members of the media.

Indeed, in a statement criticizing the new law, Frank La Rue, the UN Special Rapporteur for the Protection and Promotion of the Right to Freedom of Opinion and Expression, called parts of the law “unacceptable” and argued that the new law “constitutes violations of Article XIX of the International Covenant on Civil and Political Rights and Article XIII of the American Convention on Human Rights.”

In regards to freedom of the press, La Rue noted that, “according to international human rights principles and the jurisdiction of the Inter-American Court of Human Rights, journalism can be practiced without condition, qualification, nor professional association, nor through registering with any institution of the State. This allows journalism to develop truly independently and freely.” In particular, La Rue refers to the concept of “media lynching,” intended to limit media criticism of public policy or state officials, with vague wording about the concerted production of information to discredit a person or even a legal entity. As in many Latin American countries, truth is not a defense against charges of defamation of this kind.

Banning anonymity online
Another threat to freedom of expression appears in Article 20 of the law, which holds public media liable for third party comments on their websites unless they generate identification mechanisms for commenters including their personal data such as name, email address, or ID number, or designate self-regulation mechanisms that avoid such posts, allowing the notice and takedown of content that harms constitutional or legal rights.

These kinds of identification mechanisms create a de facto ban on online anonymity, and would also unjustly hold intermediaries liable for the comments of their users. Anonymity is crucial for the exercise of privacy and freedom of expression, and the restriction of anonymity without due process is a threat to both human rights.

While Ecuadorian President Rafael Correa has already approved the new law, we hope that it will be implemented and interpreted in a way that comports with international human rights standards, protects the rights of Ecuadorian citizens and the media, and addresses the concerns voiced by La Rue, the press, and civil society.

All quotes from the new Ecuadorian communications law cited in this blog post were translated to English by Access staff and are not official. See the original Spanish text of the law here.