August 9, 2010

Arq. Fernando Cordero Cueva
President of the National Assembly
Quito, Ecuador
Washington, D.C.
Dear Mr. Cordero,

I am writing to thank you, your advisors Mr. Xavier Flores and Mr. Manolo Sarmiento, and Congressman Mauro Andino, for having received us on July 27, 2010, to discuss the proposed Communications Law.  I would like to take advantage of this opportunity to share with you our observations on the draft legislation, with the purpose of providing constructive input to improve the proposed law during its debate in an upcoming plenary session of the National Assembly.

No one questions that a genuine democracy requires separation of powers, free and regular elections, and an independent judiciary. Another key indicator to measure democratic progress is the extent to which a government protects and promotes basic rights such as freedom of expression.

There are at least two important reasons that explain why freedom of expression is a key element of democracy.  First, any obstacle to the free flow of ideas and opinions limits freedom of expression and democratic debate, which requires that diverse opinions be heard.  Second, guaranteeing access to information, an essential aspect of free of expression, is critical to promote greater government transparency and accountability.

As we mentioned during our meeting, the proposed Communications Law includes positive measures, such as explicitly prohibiting monopolies and oligopolies in media ownership, a serious problem for freedom of expression in the region.[1] International human rights bodies, such as the OAS Special Rapporteur for Freedom of Expression, have held that the concentration of media ownership is a threat to freedom of expression, as it has an adverse impact on the free circulation of ideas. It limits plurality and diversity, thus undermining a truly democratic debate and everyone's right to information. The draft legislation also proposes to promote subtitles or sign language to provide equal access for those with hearing disabilities, which is an important step towards ensuring equality under the law, and ending discrimination.[2]

But the draft legislation also includes some provisions that should be amended to ensure that Ecuador meets its international obligation to protect and promote freedom of speech. Our analysis of these provisions is included below.

Prior Censorship

Even though the proposed law prohibits prior censorship in principle, it includes vague language that risks opening the way for censorship. Specifically, proposed article 9 states that the right to freedom of expression involves "the search, reception, exchange, production and dissemination of truthful, verified, opportune, contextualized, and plural information."[3] This is directly at odds with the Declaration of Principles on Freedom of Expression ("Declaration of Principles"), adopted by the Inter American Commission on Human Rights,[4] which states in Principle 7 that "[p]rior conditioning of expressions, such as truthfulness, timeliness or impartiality is incompatible with the right to freedom of expression recognized in international instruments."

Proposed Article 9 raises particular concern when taken together with proposed Article 29, which states that "the exercise of communication rights will not be subject to prior censorship, except in those cases established in the Constitution, in international treaties in force, and in the law, and the same applies to subsequent liability for violating these rights."  Such broad language could allow the government to determine which information is not "truthful"-a standard that is typically difficult to measure-and opens the door to laws that would prevent the publication of any information government bodies consider "untruthful," a classic situation of unlawful censorship.

Article 13 of the American Convention on Human Rights explicitly prohibits prior censorship.[5] The Declaration of Principles sets out in Principle 5 that "[p]rior censorship, direct or indirect interference in or pressure exerted upon any expression, opinion or information transmitted through any means of oral, written, artistic, visual or electronic communication must be prohibited by law. Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information violate the right to freedom of expression."

Unreasonable Restrictions to Exercise Journalism

The draft legislation includes sanctions that place unreasonable restrictions on freedom of expression. For example, it provides for the imposition of sanctions if a media outlet "fails to observe its ethics code."[6] A media outlet that "publishes letters that are not adequately supported by the signature, identification, or pseudonym of the author" can also be sanctioned.[7] If a media outlet were to repeatedly commit these infractions, it could be fined up to 10 percent of its average income over the course of the previous three months.[8]

These requirements would allow for undue interference in the work of media outlets. Media outlets may choose to have an ethics code or not, and can determine for themselves what the contents of the code may be. To permit sanctions to be imposed for alleged violations of a voluntary, internal set of standards is an arbitrary and disproportionate interference in the operation of media outlets.

Likewise, the imposition of sanctions for failing to provide the name of a letter's author, undermines the ability of a journalist to protect his or her sources, and is an unreasonable interference. Under Article 19 of the International Covenant on Civil and Political Rights, restrictions on freedom of expression are only permissible "[f]or respect of the rights or reputations of others" and "[f]or the protection of national security or of public order (ordre public), or of public health or morals." Article 13 of the American Convention on Human Rights states, "[t]he right of expression may not be restricted by indirect methods or means, such as the abuse of government...controls...or by any other means tending to impede the communication and circulation of ideas and opinions."

In addition, the proposed law requires journalists to be professionals, which also contradicts international standards. The proposed Article 18 states that most positions in written media outlets, TV stations, and radios-including editors, directors, journalists, and correspondents- should only be carried out by social communicators or professional journalists. Yet Principle 6 of the Declaration of Principles states that, "every person has the right to communicate his/her views by any means and in any form" and requiring a university degree to practice journalism "constitute[s an] unlawful restriction of freedom of expression."

Omissions in the proposed law

The proposed law fails to adequately address three important issues. It does not include a provision to decriminalize defamation, and it fails to sufficiently regulate the obligation imposed on all radio and TV stations to transmit official speeches, and the process by which public money is used to purchase advertisement opportunities for government use.

Criminal Defamation

The draft legislation does not include a proposal to modify the Ecuadorian Criminal Code to eliminate criminal defamation of public officials.

The Ecuadorian Criminal Code includes several provisions criminalizing "desacato"-i.e. it provides that prison sentences may be imposed on individuals who "offend" the president or other government authorities.  Anyone who insults the president may be imprisoned for up to two years.[9] Anyone who insults or exercises violence against other government authorities-including legislators, ministers, judges, governors, and any other public officials with civilian or military authority-during the course of their duties, or as a consequence of these duties, may be imprisoned for up to three months.[10] And anyone who "disrespects any court, corporation or public official" during the course of their duties, with "words, gestures, or acts of despise" or by "interrupting [an] act" may be imprisoned for up to one month.[11]

In a joint declaration in 2000, the Special Rapporteurs on Freedom of Expression of the United Nations, the Organization for Security and Cooperation in Europe, and the Organization of American States recommended that, "laws which provide special protection for public figures, such as desacato laws, should be repealed." The experts also recommended that, "the State, objects such as flags or symbols, government bodies, and public authorities of all kinds should be prevented from bringing defamation actions."[12]

International human rights bodies have also called on governments to decriminalize defamation involving public officials in the interest of promoting vibrant public debate essential to a democracy. The Declaration of Principles state that protection of the reputation of public officials should be guaranteed only by civil sanctions.[13] They further provide that for a court to find that something is defamatory it must be proven that "in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news."[14]

In addition, the Inter-American Court of Human Rights has held recently that the use of criminal proceedings for defamation must be limited to cases of "extreme gravity," as a "truly exceptional measure" where its "absolute necessity" has been demonstrated, and that in any such case the burden of proof must rest with the accuser.[15]

Official Mandatory Speeches

Ecuadorian government officials have the power to compel all TV and radio stations to broadcast official speeches.[16] These speeches may be broadcasted live, or previously recorded and sent to stations to be broadcasted at a specific time.

Proposed Article 72, which lists which government authorities may order all TV and radio stations to broadcast official speeches, expands (instead of limiting) who has the power to instruct that such speeches be broadcast.[17] And, although it states that authorities can exclusively issue these speeches "to inform about issues of their competence when it is necessary for the public interest," the vague language in the proposed legislation could justify obligatory broadcasting of speeches, beyond what may be reasonably permitted under human rights law. In addition, the law establishes that the government can order stations to air "up to one hour per day" of "official educational programs that are relevant for citizens..."

The use of legal authority to compel certain transmissions clearly constitutes interference with freedom of expression. Therefore, any legislation allowing for such interference should establish as clearly as possible the legitimate purpose that justifies the transmission, and should provide clear parameters to determine that such interference is necessary and proportionate. For example, it should determine the process by which a decision to impose a mandatory broadcast is made, what percentage of air time these mandatory official speeches can take up, the frequency with which they may be issued, and at what time of the day they can be broadcast. 

Public Funding of Government Advertisement

Proposed Article 73 states that government bodies should take into consideration "equal opportunity principles" when purchasing advertisements in the media, and should pay attention, for example, to the territorial jurisdiction and rating of the media outlet it will hire. It also establishes that government bodies should elaborate a public, annual report setting out public spending on such advertisements.

While the proposed article establishes some important principles that should apply whenever public funds are used to purchase advertisements for the government, it fails to prescribe sufficiently appropriate guidelines to ensure transparency and accountability with regard to  government spending. The existing legal framework applicable to contracts signed by government bodies regulates how and when government authorities may spend official funds, but explicitly excludes contracts related to "social communication activities regarding activities by the national government..."[18] It is therefore critical that the proposed law fill that gap, and include specific guidelines on the conditions applicable to advertising contracts to promote and ensure transparency and accountability.

When drafting such guidelines the legislators should bear in mind Principle 13 of the Declaration of Principles, which provides that, "... the use of public funds by the state, ... the arbitrary and discriminatory placement of official advertising with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression, and must be explicitly prohibited by law."

Since this type of legislation has such a strong impact on basic rights, it is critical to bear in mind that freedom of expression is not merely being able to say what one thinks.  True freedom of expression requires facilitating imparting and receiving information; guaranteeing non-discriminatory access to different media that enable the expression of diverse opinions; protecting those who speak out from retributive sanctions; and eliminating undue restrictions on the content of expression.

I respectfully urge you to take these considerations into account when presiding over the debate in the National Assembly, and to encourage adoption of the necessary modifications to the law to ensure that Ecuador complies with its international human rights obligations.

Sincerely,

José Miguel Vivanco
Americas Director
Human Rights Watch

[1] Articles 3 and 87 of the proposed Communications Law.  

[2] Article 24 of the proposed Communications Law.

[3] Proposed article 9 reproduces the exact same language that is included in article 18 of the Ecuadorian Constitution.

[4] The Declaration of Principles on Freedom of Expression, adopted October 19, 2000 see: http://www.cidh.oas.org/declaration.htm.

[5] O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, ratified by Ecuador on December 8, 1977.

[6] Proposed article 102 (d).

[7] Proposed article 102 (a).

[8] Proposed article 103 (a).

[9] Ecuadorian Criminal Code, art. 230.

[10] Ecuadorian Criminal Code, art. 231.

[11] Ecuadorian Criminal Code, art. 232.

[12] Joint declaration issued by Abid Hussain, U.N. Special Rapporteur on Freedom of Opinion and Expression; Freimut Duve, OSCE Representative on Freedom of the Media; and Santiago Cantón, OAS Special Rapporteur on Freedom of Expression, UN Press Release, December 1, 2000.

[13] Principle 10 of the Declaration of Principles states: "The protection of a person's reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest." Inter-American Commission on Human Rights, Annual Report of the Rapporteur on Freedom of Expression (2002), Chap. 5 (18, 19), pp. 149-154.

[14] Inter-American Declaration of Principles on Freedom of Expression, Principle 10. These standards are similar to the "actual malice" doctrine, which originated in the United States in the landmark New York Times v. Sullivan case in 1964. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[15] Inter-American Court, Eduardo Kimel v. Argentina, Judgment of May 2, 2008, Inter-Am. Ct. H. R. (Series C) No. 177 (2008), para. 78.

[16] Ley de Radio y Televisión, arts. 59, 66, 67, 68, 69, and 70.

[17] The proposed article 72 includes, for example, the president of the National Electoral Council, the president of the Council of the Judiciary, and the Ombudsperson, among others. Ley de Radio y Televisión, art. 59.

[18] Organic Law of the National System of Public Contracts (Ley Organica del Sistema Nacional de Contratacion Publica), Registro Oficial 395, 4-VIII-2008, July 2, 2008, art. 2 (3).

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