After having what was characterized by international organizations defending freedom of expression as the most repressive communication law on the American continent, Ecuador continues in its fight to erase the last vestiges of it and approve a new law that is in accordance with international standards.
“We are fighting article by article,” César Ricaurte, director and founder of the NGO Fundamedios, said in conversation with LatAm Journalism Review (LJR).
The road has not been easy. Despite the fact that the new law is already under review by a commission of the National Assembly and there are efforts of civil society and some assembly members, for Ricaurte, what appears to be an opposition majority in the Legislature could stop these attempts.
Debate en la comisión de la Asamblea Nacional de Ecuador que estudia el proyecto de ley de comunicación. (Foto: Fundamedios)
The Organic Law of Communication (LOC, for its acronym in Spanish), approved in 2013 and promoted by then-President Rafael Correa, brought Ecuador one of the darkest times for freedom of expression. Hand in hand with one of the entities created by law, the Superintendency of Information and Communication (Supercom), fines and sanctions were imposed on several occasions, classified as “disproportionate” against journalists and the media.
Supercom’s decisions were controversial from the start. The first one it took, for example, was to force the cartoonist Xavier Bonilla ‘Bonil’ to “correct” a work. Or, for example when newspaper El Universo was sanctioned with a fine equivalent to 10 percent of the average turnover of the last three months (approximately US $350,000) for allegedly not following government orders. According to Supercom, the newspaper did not publish a replica of an article with the headline that the government demanded.
In the first four years of operation – according to a 2017 report by Fundamedios – 1,081 cases were opened against the media and journalists. According to the 2017 study, 675 ended up in sanctions that ranged from making corrections, replicas, delivering copies of programs, public sanctions, administrative measures, among others. According to calculations by Fundamedios, Supercom collected US $531,288 in fines in those years.
It was in the midst of this situation that former President Lenín Moreno, Correa's successor, proposed a series of reforms to the LOC that included the abolition of Supercom. Indeed, in December 2018 the first reforms to the LOC were approved, which included the elimination of that entity.
In December 2020, a new reform to the LOC was approved, this time only to Article 5, with which communication was once again considered a human right and not a public service. Although this issue had been stipulated in the first reforms, "mysteriously" it wasn’t included in the approved text, according to Ricaurte.
“What this package of reforms does is deactivate the most repressive organisms or aspects of the communication law. The entire scheme of the Superintendency disappears, the administrative sanctions against the media, fines, requests for apologies disappear. All that disappears. But the rest of the law remains,” Ricaurte explained. "That is to say, a large part of the problems of the 'correísmo' communication law was that it was an extensive law that tried to address all aspects of social communication and among those there was a series of regulations that did not conform to international standards. So, we always argue that President Moreno's reform package, although it was very positive, was on the right track, was not complete.”
According to Ricaurte, it was necessary to address issues related to public information and access to it. The power of the government to order national channels was not regulated, the issue of public media or official advertising was not regulated, to name a few. "I mean, there were still some gaps," he said.
When Guillermo Lasso took office in May 2021, he proposed to completely repeal the LOC, as he had promised in his campaign. However, in the middle of a legal discussion, some voices pointed out that it was not possible to repeal an organic law without having a new law. Lasso proposed the so-called Organic Law of Free Expression and Communication, which was intended to completely replace the LOC. This was a framework law and minimalist law, as defined by Ricaurte, with 14 articles that did not cover the complete subject of communication.
Assembly members Fernando Villavicencio and Marjorie Chávez together with Fundamedios presented the draft Organic Law for the Guarantee, Promotion and Protection of Freedom of the Press and Communication that somehow sought to “complement” the bill sent by Lasso, Ricaurte explained.
"In general terms, it is a law that seeks to change a model, a model of prior censorship, direct or indirect, to a model of subsequent liability and a model of self-regulation," Assemblywoman Marjorie Chávez told LJR. "We have had a bad experience for more than a decade in our country, where the communication regulation model really prioritized self-censorship and this created several problems for the country, including arbitrary and excessive sanctions."
On Aug. 23, the International Relations Commission of the National Assembly, which was commissioned to study these laws, approved the unification of these two bills with the aim of having a new and unique communication law.
For Chávez, one of the most important aspects that stands out in this new law is the contribution of civil society. Thus, for example, the bill has been socialized with academia, with students, with experts and different unions, as well as with other assembly members.
"I believe that it is a fairly comprehensive law that meets all national constitutional parameters, but also all international parameters in terms of communication rights," Chávez said.
The bill addresses issues such as protected speeches, State obligations, journalistic self-regulation, as well as that of subsequent liability for which decisions of the Inter-American Court of Human Rights on this matter were taken as a basis. It also touches on the issue of the protection of journalists as well as civil penalties for defamation.
"In other words, the non-material damage must not be of such proportions that it causes an inhibitory effect on freedom of expression and must be designed to restore the damaged reputation and not to compensate the plaintiff or simply punish the defendant," the assemblywoman explained.
According to Chávez, the Commission has 90 days to study and modify this bill – which currently has 29 articles – to send it to the plenary session of the National Assembly. As with most bills, the plenary will surely deliver reviews and comments so that they can be studied again by the Commission, which will eventually return it to the plenary for a second and final debate.
Although this whole process could take nine months, the assemblywoman hopes not only that it can be reduced to seven, but also that she will find majority support to promote a law that she considers necessary for the country.
"When those legal processes have a marked ideological component, they tend to be more difficult to reach agreements, right? But let's hope that the political will matures, and sees what our country needs. Also remembering that the basis of this bill is freedom of expression,” she said.
Ricaurte also hopes to find an ally of freedom of expression in the Assembly, although he sees it with a little more fear.
"There is a will on the part of the Executive, its group of parliamentarians and some sectors to really move forward and go for a law that respects standards, as the name says, promotes, guarantees and defends freedom of expression," Ricaurtee said. “But there are, as I say, sectors in the Assembly that are much closer to the government, to Correa's party and who rather want to take advantage of this opportunity to go back. And even go back to what the communication law was before Lenín Moreno's reforms.”
A very serious situation if one takes into account the "better atmosphere" that exists in the country after eliminating "that immense pressure" that came from the presidency, or the "administrative state violence", as Ricaurte calls it.
On the other hand, he believes that the country needs greater attention on other fronts, like, for example, the protection and safety of journalists, an issue on which he says "no work has been done at all."
Something that was demonstrated in the abduction and murder of El Comercio journalists, as well as in "the massive attack on journalists during the social protests of October 2019," according to Ricaurte.
For him, now is the time for the arrival of the new law. Something that Chávez agrees on.
“I believe that it is something that the country is waiting for, the change of model. And to stop waiting for the State to tell you what to consume, what kind of information to consume and under what conditions, right?” Chávez said. “I believe that Ecuador is ready to take this next step.”
