Ecuador’s National Assembly eliminates controversial sanctioning body with reforms to Communications Law

After a second and final debate, on Dec. 18, Ecuador's National Assembly approved reforms to the country’s Communication Law (LOC, for its acronym in Spanish), indicated by experts as the most repressive on the continent.

One of the most significant elements of the reform is the elimination of the Superintendency of Information and Communication (Supercom) that the LOC created when it was approved in 2013 when Rafael Correa was president. This body was responsible for monitoring the content of the media and enforcing the law, with the ability to initiate investigations against media or journalists, as well as to impose sanctions when it considered it necessary. The sanctions ranged from fines to publishing rectifications or public apologies.

The existence of this entity, which could be judge and jury in cases against media, was one of the most criticized points of the LOC. Its first decision to force a cartoonist to publish a rectification of his work only raised more questions and criticism of its work. In the first four years of operation – according to a report by the same entity – 1,081 cases against media and journalists were opened. According to a 2017 study by Fundamedios, 675 ended in sanctions ranging from rectifications, replies, deliveries of copies of programs, public sanctions, administrative measures, among others.

The bill also eliminated the figure of “media lynching” that had the power to make a journalistic investigation a crime. Ethical codes and rules of communication were also eliminated, the Assembly reported.

“In some way [the feeling is] to celebrate the dismantling of the punitive system, the system of sanctions against the media that was the epicenter for a repressive system in Ecuador,” César Ricaurte, director of Fundamedios, told the Knight Center. Fundamedios is one of the organizations that formed the Democratic Group for the Reforms of the Communication Law. A group that led the discussions -- for a little more than eight months -- around the reform that the law should have.

“The dismantling of that punitive system is something worthy of really highlighting and our feeling is one of relief, that the effort that has been made over these months of discussing the reforms to the law has been worthwhile,” Ricaurte added.

The reform gives the Supercom a term of 180 days to review its processes, and reverse the sanctions where they should be given, Ricaurte said.

“There is a very interesting element to also make clear that what happened with the Communication Law in Ecuador was part of a state policy of systematic abuse in the area of human rights,” Ricaurte said.

However, he stressed that they are “reasonably happy,” but not “satisfied.” Ricaurte said that even if a balance could be made of the final result, the reform would be 70 percent positive, there is still a way to go to improve the guarantees of freedom of expression in the country.

For example, he stressed as worrying that the regulatory body that remains in the law, the Cordicom (Council for Regulation, Development and Promotion of Information and Communication) "does not correspond to international standards for an organism of this nature," according to Ricaurte. Although the Cordicom does not assume the responsibilities of the Supercom, it does have regulatory and normative functions, when issuing regulations, for example.

“International standards say that an organization of this nature should be absolutely apolitical, without government influence, and of a high technical level,” Ricaurte explained. With the current composition, he said, the government has a great influence on this.

Another issue that was not repealed has to do with the article on circulation of restricted information. This article restricts the publication of judicial cases by media, which in his understanding “limits in some way the exercise of investigative journalism.”

The professionalization of journalistic work also worries the community. “It is regrettable that it is not understood that in reality we are not talking about a law for journalists but about a law that regulates a fundamental human right that is freedom of expression,” said Ricaurte, for whom this article only places obstacles for the exercise of this right.

Undoubtedly, one of the most controversial issues has to do with the granting of frequencies. Through a transitory clause, "approved at the last minute," according to Ricaurte, an automatic renewal is made to those media that have finalized the contract with the State, including public, private and community media. However, according to Ricaurte “it basically favors private media.”

“It is a reform with which we do not agree, so we expressed it in a public statement. We believe that there should be bidding process for frequencies, and they must be processes carried out with transparency and with absolute fairness and with absolute appropriateness. This direct form we believe is not the most appropriate,” Ricaurte explained.

A reform agenda

Ricaurte stresses that although this is a very significant development, the implementation as such of the reformed law requires work and the joining of forces by media, journalists, civil society and even the State itself.

With the elimination of the Supercom, it is necessary to develop a "solid system of self-regulation," according to Ricaurte, so that the media can meet the needs of their audiences, and respond clearly and promptly to future claims.

He also considers the training of the country's justice operators in international freedom of expression standards more relevant than ever. Bearing in mind that some cases must be resolved by judges, they must master these standards so that “they can weigh in due form the rights that may collide.”

But the road does not end here. For organizations like Fundamedios, the work to improve the guarantees of freedom of expression requires not only achieving a good implementation of the reforms, but also working on the reform and creation of other laws.

“I would say that 2019 is a year in which we have to work on the implementation of the law and other legal reforms," Ricaurte said. “It is not only the law of communication, the Communication Law was the fundamental tool of this regime of sanctioning, of this regime of repression against freedom of expression –  set up during ‘correísmo’ – but it is not the only tool.”

For example, according to Ricaurte, it is necessary to begin to seriously debate on creating a law on public media and on official advertising, and on deep reforms for the laws on the protection of personal data and access to public information.

The bill that reforms the LOC received 75 votes in favor of the reform, 25 against and 7 abstentions, reported newspaper El Comercio. The document now passed into the hands of the country's president, Lenín Moreno, who may make observations or vetoes, to finally be published in the Official Gazette, the newspaper added.

The reform project was promoted by Moreno and sent to the legislature last May. After learning of the approval by the Assembly, Moreno expressed gratitude through his Twitter account for a law that “regains freedom of expression and thought.”  “I congratulate all the citizens for this achievement. Let's not forget that with liberties, come great responsibilities,” the president wrote.