Ecuador: Law on Communications
26 Jul 2012
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In June 2012, ARTICLE 19 analysed the Draft Communications Law (“Ley Orgánica de Comunicación”) of Ecuador. Although it was originally proposed as far back as 2009, the Law attracted substantial controversy and its adoption became stalled. Critics feared the proposal would enable increased government control over the flow of information, while the ruling majority argued its aim was to democratise communications and break down old structures of corporate media control.
The analysis focuses on the compatibility of the current Draft Law with international standards on freedom of expression. While the Draft Law has been improved since the original draft, ARTICLE 19 believes that it still requires further revision to protect the right to freedom of expression. The analysis offers practical recommendations for Ecuador’s National Assembly to achieve this.
In the analysis, ARTICLE 19 recognises and welcomes positive provisions of the Draft Law, such as the commitment to media pluralism, and the promotion of local content and domestic productions. Similarly, we commend the provisions devoted to the rights of equal participation in and access by all parts of society to the media, such as the Indigenous, Afro-Ecuadorian and Montubio communities, and disabled persons. A particularly impressive aspect of the Draft Law is also the guarantees for the protection of sources for all groups that fall under the broad term “social communicators”. Elements of the section on public service media are also promising such as the progressive mandate proposed for public service media.
ARTICLE 19 observes that the Draft Law has been amended to prohibit prior censorship and the definition and understanding are now in line with other democracies. Yet, a more effective deterrent is required to safeguard the right such as the option to stop the prior censorship through an expedited court procedure.
Areas of particular concern were the degree of independence of regulatory bodies from political interference, and procedural inadequacies in the proposed handling of broadcasting content, licenses, and censorship. The proposed funding and appointments processes for the regulatory bodies need to be more transparent and participatory, and the accountability of these bodies should be increased through the requirement for annual reports and audited accounts to be submitted to the National Assembly.
Furthermore, amendment is also required so that the Draft Law does not bar financial companies from owning media outlets, and political parties are excluded in order to ensure political pluralism of the airwaves.
ARTICLE 19 also notes the State’s inappropriate intrusion into areas which should be self-regulated by the media, such as the content of print media and the development of ethical codes for broadcast media. Provisions for the general labour rights of social communicators are also an unnecessary consideration here and should be provided for in general labour laws.
The Draft Law allows a worrying degree of government control over content, in particular, the repetition of the President’s power to suspend media freedoms during a state of emergency, already provided for in the Constitution, and the provision for the Presidents of the Republic and National Assembly, and lower officials, to demand airtime for the broadcast of cadenas (announcements of “general interest”), a grotesque and unjustifiable limitation on editorial freedom, which has already been regularly abused.
ARTICLE 19 strongly recommends that vague provisions in the law be clarified or omitted, such as the prohibition on publication of information covered by a “reserve clause”, and the criterion requiring that the media be held responsible for conduct that is considered to “harm human rights or the public security of the State”. The former should be deleted, and the latter should be amended so that the media are only accountable where they have breached a specific law.
Finally, ARTICLE 19 calls on the National Assembly to recognise that the Draft Law in its current form still falls short of international standards on freedom of expression. We therefore urge that the Draft Law is only adopted after the necessary amendments have been made.
Overview of Recommendations:
- The Law on Communications should not seek to regulate the ethics of journalism. Articles 9 and 10 should be deleted.
- A provision should be added to Title II, Chapter I of the Draft Law, clarifying that the principles listed in Articles 11-15 do not create new powers, but are guidelines that public bodies must observe when exercising regulatory powers over the media.
- Instead of providing a new definition of freedom of expression in Articles 17 and 27, the Draft Law should refer to Article 13 of the American Convention on Human Rights and the relevant provisions in the Constitution of Ecuador.
- Alternatively, Articles 17 and 27 of the Draft Law should be made consistent with the American Convention, by stating expressly that freedom of expression applies regardless of frontiers and includes the right to seek and receive not only information, but also ideas of all kinds.
- Individuals and media who believe the ban on prior censorship has been violated should be able to challenge this through an expedited court procedure.
- Article 20 of the Draft Law should be amended to make it clear that media are responsible only for specific breaches of the law and not for conduct that is considered to “harm human rights or the public security of the State”.
- The rights of reply and correction should be limited to inaccurate facts and should not apply to statements clearly attributed to third parties.
- The Law on Communications should recognise a set of circumstances under which media outlets are not required to accept a reply, including when the reply is not presented within a reasonable time, exceeds what is necessary to correct the mistake, is abusive or contains unlawful content, or the individual concerned lacks a legitimate interest.
- Only persons who are entitled to the right of correction or reply should have the right to receive a free copy of the disputed media content.
- Articles 28-30 of the Draft Law, as well as other provisions of the Law intended to protect the right of privacy, should be subject to a public interest defence, which exempts a person from liability for publishing private information when doing so made a sufficiently important contribution to a debate of public interest.
- In addition, the Law on Communications should expressly recognise that public officials, especially high-ranking and elected ones, must tolerate a higher degree of scrutiny of their private lives.
- Article 28(1) of the Draft Law, prohibiting the publication of information covered by a “reserve clause”, is excessively vague and should be deleted.
- The publication of prosecutorial files should be permitted with the prosecutor’s consent. Article 28(3) of the Draft Law should be amended to this effect.
- Article 31 of the Draft Law should be amended. The Law should not bar financial institutions and bankers from owning media companies.
- Article 32 should be amended. The Law should prohibit political parties from being granted a broadcasting licence.
- The right to protection of sources, as defined in Article 38 of the Draft Law, should be extended to collaborators of the social communicator who acquire information on the source’s identity during the preparation of the story.
- There should be an explicit ban on any police search and seizure operations intended to uncover the identity of a social communicator’s source.
- Consideration should be given to limiting the right of social communicators to publicly speak out against their employer to cases where there has been a clear breach of a law.
- The requirement under Article 40 of the Draft Law, for certain media and communications jobs to be performed by “professionals in journalism and communication”, should be dropped.
- Article 41 of the Draft Law should not seek to regulate specific labour rights of social communicators such as salaries, insurance coverage and professional development. These issues should be dealt with through general labour laws that apply to enterprises in general.
- Members of the Council for the Regulation and Development of Communication should be selected by an elected body, preferably by a qualified majority vote in the National Assembly or by a cross-party committee of its members.
- Nominations for members of the Council for the Regulation and Development of Communication should be accepted from a wider range of civil society organisations or from the public at large, and the appointments should be made in a transparent and participatory manner.
- The Law should specify that the term of members of the Council for the Regulation and Development of Communication is not renewable, or is renewable only once. Consideration should be given to staggering the terms of members, in order to ensure the continuity of the Council’s work.
- The Council should be permitted to levy a fee on holders of broadcast licences to finance its operations, topped up as necessary by an allocation from the general budget, preferably in the form of a multi-year grant.
- The Council should be required to submit an annual report on its activities, including its audited accounts, to the National Assembly and to make it available to the public, for example on its website.
- The Law on Communications should not seek to directly regulate media content. Instead, it should authorise the Council for the Regulation and Development of Communication to develop a broadcasting code in collaboration with licensed broadcasters, through a process that allows for public input. This code should not apply to other types of media.
- When the Council decides to open an investigation against a broadcaster, it should provide written notification of the allegation and grant the broadcaster an opportunity to make representations.
- There should be a general obligation on the Council to ensure that any sanctions imposed are proportionate to the seriousness of the offence. All sanctions should be subject to judicial review.
- The Law on Communications should not seek to impose generalised objectives on all media. Article 74 of the Draft Law should be deleted.
- The power of public officials, including the President, to order the broadcasting of a cadena is an unjustifiable interference with editorial freedom. Articles 77(1) and (2) and Article 78 of the Draft Law should be deleted.
- The possibility to suspend media freedoms during a state of emergency is already sufficiently provided for in the Constitution and should not be reiterated in the Law on Communications. Article 80 of the Draft Law should be deleted.
- The mandate of the public media defined in Article 82 of the Draft Law should include a few additional functions, in particular: providing programming to minority groups and in minority languages, covering important proceedings of the National Assembly and other representative bodies, developing content that is of interest to different regions, and providing a reasonable proportion of educational programmes and programmes oriented towards children.
- The Law on Communications should clarify how members of the governing Councils of public media are appointed. The appointments process should be overseen directly or indirectly by an elected representative body such as the National Assembly, and should be open and participatory.
- Public media should be required to prepare and publish an annual report on their activities, including audited accounts, and submit it to the National Assembly.
- National public media should not be restricted to accepting advertising from the public sector. Consideration should be given to setting an appropriate cap on the share of public media outlets’ revenues that may be generated from advertising.
- Article 110 of the Law should expressly prohibit the arbitrary and discriminatory placement of public sector advertising as a means to punish or reward media for their opinions.
- Broadcasters should not be confined to works of ‘accredited’ producers for the satisfaction of their obligation to purchase independent national productions. The last paragraph of Article 102 of the Draft Law should be deleted.
- There should be no absolute ban on the broadcasting or printing of foreign-produced advertising. Article 103 of the Draft Law should be amended or deleted.
- The possibility should be explored of allowing licences that were granted illegally to run until the end of their term, in cases where the licence was not granted as a result of unlawful conduct on the part of the holder.
- Before taking an important decision affecting the rights of a licence holder or applicant, the Council should in all cases grant the party in question a right to make representations. Decisions should be made in writing, stating the reasons, and should be subject to judicial review. The same requirement should apply to decisions to withdraw licences taken by the Telecommunications Authority.
- Persons who have a familial or business tie to a member of the Council should not be barred from taking part in licence competitions. Rather, the Council member in question should be barred from taking part in the decision. Article 119 should be amended to this effect.
- The duration of a licence should depend on the nature of the service and the level of investment required. Article 124 should be amended to introduce different categories of duration.
- Insofar as the Council is granted the power to levy fees on licence holders, these should be proportionate and non-discriminatory, and established through a schedule published in advance. Community broadcasters should be exempt from this fee.