(Washington, DC) - The Ecuadorian National Assembly should amend proposed legislation to regulate communications, Human Rights Watch said today. The current draft includes provisions that could restrict free expression instead of safeguarding it, Human Right Watch said.
"Ecuador is following a regional trend and taking a step in the right direction with a proposal for a new communications law," said José Miguel Vivanco, Americas director at Human Rights Watch. "It is now up to the National Assembly to amend the proposal to make sure this is not a wasted opportunity."
The proposal includes positive measures, such as explicitly prohibiting monopolies and oligopolies in media ownership, promoting subtitles or sign language to provide equal access for those with hearing disabilities, and requiring government offices and private entities that administer public resources or provide public services to disclose public information they hold.
But it also includes several problematic provisions that, if adopted, would violate Ecuador's obligation to protect free expression, Human Rights Watch said.
Prior Censorship
The proposed law includes vague language that seems to open the way for censorship and language limiting the content of media programming. Proposed article 11 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." Proposed article 30 states that "the programming of media outlets will disseminate, primarily, contents of an informative, educational, and cultural nature."
Article 13 of the American Convention of Human Rights explicitly prohibits prior censorship. The Declaration of Principles on Freedom of Expression, adopted by the Inter American Commission on Human Rights, states 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."
"The proposed law would allow the government to establish reasons for prior censorship in any law, generating also a climate of self-censorship, which violates Ecuador's obligations under the American Convention," Vivanco said. "What makes it even more absurd is that it would even limit harmless options, such as an entertainment channel that is not of an ‘informative, educational, or cultural nature.'"
Prerequisites to excercise journalism
The draft legislation requires all media outlets to register in order to operate. This means the implementing body could cancel a media outlet's registration for reasons outlined in the proposed law, which include unreasonable restrictions on freedom of expression. For example, it provides for the imposition of a fine on a media outlet that "transmits or publishes letters, notes, or commentaries that are not adequately supported by the signature or identification of the authors, except when it is a journalistic comment issued with a pseudonym of an identifiable person." If a media outlet repeatedly transmits or publishes these letters, notes, or commentaries, it could be suspended.
The requirements would undermine journalists' right to protect sources and would unlawfully restrict free expression. Under article 19 of the International Covenant on Civil and Political Rights, restrictions on this right 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, "The 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 all journalists to be professionals, which also contradicts international standards. The proposed article 47 says that, "editorial decisions and elaboration of news in the media must be carried out only by professional journalists and social communicators with their corresponding degree." Yet 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."
"A media law should promote, and not limit, the free flow of information, which is critical to strengthening an open debate in any democratic society," Vivanco said. "These provisions, taken as a whole, point precisely in the opposite direction."
