What future for free speech in Ecuador after presidential election?

Correa began to exercise constant control over the media agenda as soon as he became president in 2007, and helped to create an appalling climate for freedom of information by personally and publicly attacking media outlets that criticized him.

Adoption of the very controversial Organic Law on Communication (LOC) during his third term increased the polarization between the government and many privately-owned media outlets.

Repeal or amend the LOC

“Democratize the media landscape,” the LOC’s declared goal when adopted in June 2013, was encouraging. At the time, RSF hailed its envisaged respect for journalists’ professional confidentiality, equal distribution of frequencies between state, privately-owned and community media, and ban on prior censorship by the authorities.

But, more than three years later, the law has not fulfilled its promise. In fact, it has resulted in abuses and arbitrary sanctions and has been used by politicians to harass critics. We call for a rethink by Ecuador’s political class and we urge the next government to address the problems we have identified.

Arbitrary application, supervisory bias

Supercom ­– the state agency tasked with overseeing the LOC’s implementation – has not been neutral and independent of the government, and this has caused a great deal of tension. The appointment of Carlos Ochoa to head Supercom in 2013 prompted immediate concern about potential conflicts of interest because his previous position was head of news at GamaTV, a government-controlled broadcaster that has carried out Correa’s editorial policies to the letter.

The LOC is not applied in the same way for everyone. The most striking example of this is the “Sabatina,” the president’s weekly TV broadcast on state-owned ECTV (and by other TV channels on a voluntary basis) in which he discusses the subjects of his choice at length, sometimes for several hours, and often lambasts the media and his opponents.

This broadcast is not subject to legal supervision because article 4 of the LOC’s regulations states that the president is not to be treated as a media outlet. This allows him to say anything he likes without having to accept any comment or challenge.

David Kaye, the UN special rapporteur on freedom of expression and opinion, and Edison Lanza, the OAS special rapporteur for freedom of expression, issued a joint statement in November 2016 in which they condemned the LOC’s arbitrary application and said it was paralyzing and inhibiting Ecuador’s journalists and media. Ochoa’s scathing response reinforced mistrust of Supercom.

Litigious approach to the media

In the three years since the LOC took effect, a total of 554 lawsuits have been brought against the media, of which 398 resulted in sanctions. More than half of the sanctions ordered by the courts were fines, 27% were obligatory corrections and 11% were public apologies. No fewer than 72% of the legal actions were brought by government officials.

President Correa himself encouraged this litigious approach to the media. In response to a 2011 article in the El Universo newspaper about his handling of a police uprising (which he regarded as a coup attempt), he brought a libel suit against the newspaper and sought 80 million dollars in damages – an absurd sum with no concrete basis.

In the end, Correa excused the newspaper from paying any damages in exchange for a public apology. But the case had a chilling effect on Ecuador’s media, which tend to censor or refrain from publishing content that could trigger legal action.

Ambiguous legislation, arbitrary interpretation

RSF is particularly concerned about article 22 of the LOC, which says, “it is everyone’s right that information of public interest received through the media should be verified, balanced, contextualized and opportune,” and article 18, which says, “the deliberate and repeated omission of subjects of public interest constitutes an act of prior censorship.”

These articles (and others) are open to very broad interpretation. How do you determine a news item’s importance? How can you avoid being at the mercy of the subjectivity of a judge or Supercom?

Four newspapers, La Hora, El Universo, El Comercio and Hoy, were accused in June 2014 of not giving Correa’s private visit to Chile enough coverage. In May 2015, Supercom fined La Hora 3,540 dollars for not giving enough column inches to a meeting organized by the mayor of the southern city of Loja. This unwarranted sanction was widely condemned at the time as a direct attack on media freedom.

RSF is also concerned about the draconian nature of article 23 of the LOC, which forces media outlets to automatically “correct” any piece of information that is disputed by a third party. Any challenge should be the subject of objective analysis and verification before a media outlet is made to publish a correction. This is not the case now.

Questionable allocation of broadcast frequencies

In 2013, RSF hailed the equitable distribution of radio and TV frequencies envisaged in the LOC – a third to state media, a third to privately-owned media and a third to community media.

However, community broadcast media are being created at a very slow rate. In 2014, for example, figures published by the Secretariat for State Communication (SECOM) showed that 78% of frequencies were held by privately-owned media, 20% by state media and just 1% by community media.

RSF understands that, in a country where community media were banned for years, it will take time to reach the level of broadcast frequency use by community media envisaged in the LOC. But RSF calls for an increase in the pace of creation, especially as unused frequencies are available in all of Ecuador’s provinces.

The allocation process currently under way, begun in April 2016 and managed by Arcotel, lacks transparency. President Correa preached media democratization in 2013, but one candidate – Mexican magnate Remigio Ángel “El Fantasma” González, owner of Albavisión, one of Latin America’s biggest media conglomerates – got the lion’s share in the first allocation phase.

By means of 18 different companies, González acquired 104 of the 1,472 available frequencies (60 TV channels, 43 FM radio stations and one AM radio) while outspoken and critical local media such as Radio Ondas Azuayas, which has been broadcasting for 68 years in the provinces of Canar and Azuay, were refused renewal of their existing frequencies on still unclear grounds.

On 20 January 2017, an unofficial body called the Observatorio de Frecuencias (Frequency Observatory) said the allocation process lacked transparency and suggested that there may have been illegal financial dealings between certain applicants and members of the allocation panel.

The Observatory called for the entire allocation process to be cancelled and reorganized to ensure that frequencies are assigned equitably, in accordance with the LOC’s original principles. Several of the presidential candidates issued a similar joint call.

Image rights, online attacks

Aside from the problems stemming directly from the LOC and its implementation, RSF continues to be concerned about other aspects of the environment in which many of Ecuador’s privately-owned media have to operate.

Certain dangerous practices have emerged in recent years, including the abuse of US copyright law that has accompanied the rapid development of social networks and online media and has resulted in fines, the suspension of online accounts and the arbitrary suppression of content.

In February 2016, 4 Pelagatos and several other opposition media outlets discovered through their hosting services (such as Cloudfare and Amazon) that the SECOM had filed complaints accusing them of violating the president’s image rights.

The “offence” committed by 4 Pelagatos was using photos of Correa available on the public Flick’r account of the president’s office. By bringing this action, the authorities had abused US intellectual property law and had effectively privatized the use of photos of the president and other public officials. RSF firmly condemns this development.

Several online media outlets including Plan V, Fundación Mil Hojas, Focus Ecuador and La República announced in May 2016 that they were being targeted by various forms of censorship including hacking and Distributed Denial of Service (DDoS) attacks that had led to their temporary (or in some cases) permanent closure. So far, impunity reigns and those responsible for these cyber-attacks have not been identified.

Journalists are not the only victims of this kind of abuse. Since 2013, many Ecuadoreans have seen content removed from their Facebook, YouTube or Twitter accounts that criticized or mocked the government’s actions.

Several investigative journalists and activists are meanwhile currently the targets of judicial proceedings for reporting cases of alleged corruption involved elected officials or associates of the president. The targeted journalists include Pablo Chambers, Gerard Portillo and Fernando Villavicencio, who have all been charged with criminal defamation. Villavicencio was forced to pay President Correa 44,000 dollars in damages on 26 January.

The Ecuadorean media have many problems, some external and some linked to a lack of effective self-regulation and inadequate training. The election of a new government will provide an opportunity to correct these abuses and to promote media pluralism and independence.

To this end, the new government must overhaul the LOC and the way it is implemented and ensure that freedom of expression is once again able to fulfil the vital role it must play in any effective democracy.

Ecuador is ranked 109th out of 180 countries in RSF’s 2016 World Press Freedom Index.