In Ecuador, there is a process of loss of freedom of expression going on because in some sectors of journalism and among the people self-censorship is practiced due to fear of annoying the government and facing legal consequences.
This situation has been getting worse since January, 2007 when President Rafael Correa started a campaign of discrediting and committing aggression against independent media, attacking them on numerous occasions.
Self-censorship became more acute after three directors and the former opinion editor of El Universo were sentenced to three years of prison and fines totaling $40 million in compensation to the President, since the courts found that the author of the article No to Lies had committed defamation and that the directors collaborated in the crime.
The courts granted the appeal against the penalty imposed on the directors but confirmed execution of the sentence against the author of the article, who since the end of August has been in Miami, USA, because he considers himself to be politically persecuted. Journalist Walter Vite was sentenced for defamation and is incarcerated in Esmeraldas.
Three journalists, the ombudsman, and the director of El Diario are facing a criminal charge for supposed defamation brought by a prosecutor who feels offended because the outlet published an article in which a third person accused her of corruption; this charge is moving forward in spite of the fact that the same piece contains the version of the accused person defending herself.
During this time there is also a record of the arrest of a blogger and a cameraman, an assemblyman who was physically attacked, and administrative measures against the newspaper Hoy, the magazine Vistazo and the Ecuavisa television station. The government has proposed elimination of contempt from the Penal Code, but keeping defamation as a crime.
The country is also going through a shower of accusations against the media, journalists, and hosts of television programs, brought about by politicians, athletes, artists, and citizens in general.
In the legal field, during this period the National Electoral Council announced the official results of the Popular Consultation held in May and the success of the two questions (of a total of ten, all of which received a YES vote) that affect freedom of expression and of the press.
One of the measures approved by the public is that the owners of the national media may not have other businesses. Despite the fact that this corporate limitation was anticipated in a new communications law, it has already been included in a bill for an Organic Law on Regulation and Control of the Power of the Market.
That bill of law would reform the Radio and Television Broadcasting Law and prohibit those who hold or control 6% or more of a national media company from having ownership in other businesses.
With the ownership limitation, not only are the property rights of media shareholders trampled, but also sale is blocked of the national television networks that the government has been operating since they were taken from their prior owners three years ago, because it will be difficult to find a company or an individual who has the capital to buy them without also being involved in some other business activity.
Due to the affirmative vote on the second question related to the media in the Popular Consultation, the National Assembly was ordered to draft a communications law that would include a Council for Regulation and Control of the Media. This bill is ready for its second debate. Among its principal points are the following:
-Formation of the Communications Council, which will have, among others, the following powers: to intervene in society and develop communications, to define and sanction discriminatory messages, to design and execute public policies on communication, and to order the media to rectify, reply, or respond.
-The Communications Council will be composed of seven members, of whom two are appointed by the President, one delegate from the National Council on Equality, who is another executive appointee, three designated by the citizenry, who should come out of a process that has already been tried in other fields with doubtful results, and one from the universities.
-It divides the media into generalists or thematic groups. The first group is obliged to disseminate informative, educational and cultural content; the second is not so obliged.
-It contains this text: the obligation of all persons to assume the legal, administrative, civil, and penal consequences after dissemination through the communications media of information of public relevance that damages human rights, reputation, honor, good name
-A prohibition against any discriminatory message with vague and ambiguous provisions.
-The requirement that information be objective, truthful, timely
-The obligation that the media impose and disseminate their codes of ethics.
-The scope of the law includes any media, format, or technological platform.
-The media shall be legally responsible for their content if they are unable to demonstrate that they know the identity of those who make comments on their websites.
Chronology of the Most Notable Events
On February 3, Fabricio Correa, the Presidents brother, sued the Legal Secretary of the government, Alexis Mera, claiming that he had defamed him when he said that he was a liar who has forged documents, has created ghost companies and has used front men to obtain government contracts. On May 26, the Court threw out the suit because it did not find that the crime of defamation had been committed.
On February 28, President Rafael Correa filed a suit for moral damages against Christian Zurita and Juan Carlos Calderón, journalists and authors of the book El Gran Hermano which tells of the contracts that companies linked to his brother Fabricio Correa had with the Ecuadorian state. The President seeks compensation of $10 million.
The journalists brought a countersuit asking for payment of $400,000 claiming that the serious and illegal actions and expressions of President Correa have provoked hate toward us; he is responsible for persecution rife with insults, threats, mistreatment, and judgment by various members of government, among them the Secretary of Communication, Fernando Alvarado; the Presidents Legal Secretary, Alexis Mera; his former Private Secretary, Galo Mora; and Minister María de los Ángeles Duarte.
The case is now in the evidence-gathering phase after a conciliation hearing held on September 9 failed to resolve it.
On April 16, during his Saturday broadcast, the President rejected the pronouncement of the Office of the Special Rapporteur for the Freedom of Expression of the Inter American Commission on Human Rights (IACHR) because he considers that it interferes with internal matters of the country. The communiqué from the Office mentions the suits for defamation brought by President Correa against the three journalists and the two directors of El Universo, as well as the arrest of civilians for supposedly having offended the President.
On April 25, the Minister of Transportation and Public Works, María de los Ángeles Duarte, brought a suit against journalists Juan Carlos Calderón and Christian Zurita, authors of the book El Gran Hermano, arguing that they had attributed to her the adjudication of a contract on a day in which she was not Minister of Housing (the position she had previously held); however, it acknowledges that before departing from that ministry, she left the specifications approved for the project.
On April 25, Fernando Alvarado, leader of the National Secretariat on Communication failed to respond to questions from report Sugey Hajjar of El Universo, arguing that her accreditation to cover the Government Palace had expired and that it would not be renewed until the newspaper published a rectification asked for by him concerning an event that occurred in December of the previous year. For its part El Universo sustained that Alvarados version had been published in November and that it was therefore unnecessary to do it again. Finally, without another rectification appearing, the accreditation was renewed.
On April 27 social communicator Walter Vite Benítez was arrested by the police after he had been sentenced by the courts to one year of prison and payment of $500,000 in a defamation case brought against him by the mayor of Esmeraldas, Ernesto Espupiñán Quintero.
On May 2, director Edgar Coral, of the Pisulí Housing Cooperative, sued President Correa for moral damages for having called him a land trafficker. He offered to withdraw the suit if Correa made a public refutation in the same space and at the same time. On July 26, the National Assembly did not authorize the start of the criminal trial against the President. The Constitution states that in order for a President to be put on trial, two thirds of the Assembly must authorize it.
On May 3, blogger Víctor Vizcaíno Luzuriaga was arrested in the city of Guayaquil, transferred to Quito, and released the next day. His detention had been ordered by Court 24 of Penal Guarantees of Pichincha. He had been accused of making strong criticism of the government and the General Prosecutor of the Nation in a blog called Plegaria de un Pagano .
On May 3 Prosecutor Alexandra Bravo Cedeño, of the city of Manta, demanded before the courts that El Diario and five of its contributors pay her a compensation of $1,500,000 and be sentenced to three years in prison for publication of an article in which citizen Amarilis Zambrano accused the Prosecutor of having taken $7,000 in a bribe to accuse her son of a crime. The article had appeared in the newspapers and on the companys television station, and included the prosecutors version defending herself, in a space similar to that used by the accuser.
On May 7, the facilities of El Diario in Manta were struck by five bullet shots. No one claimed responsibility for the attack.
On May 11, a bullet appeared next to the main entrance door of El Diario in the city of Chone. The gesture is considered in the local culture as a death threat.
On May 14 Jaime Ugalde, editor-in-chief of El Diario was verbally attacked while traveling in his vehicle with his wife in the city of Portoviejo. Persons traveling in a truck bearing signage from the pro-government movement insulted him and shouted slogans that Correa uses to attack the press. Simultaneously, another vehicle blocked his way.
On May 16 radio station Sucumbíos, managed by the Vicars Office in the province of the same name was taken by a group from the religious congregation Heralds of the Gospel, which occupied the Vicars Office replacing the Carmelite Order. The Diocese must have intervened and both groups left the province.
On May 20, the National Council on Telecommunications (Conatel) opened a case against the television network Ecuavisa, accusing it of not carrying the governments television broadcasts at the specified time and of placing superimposed notices that the program consists of government replies and not its own programming.
On May 24, at the request of the Ministry of Politics, the National Electoral Council initiated an investigation of the newspaper Hoy for a supposed electoral infraction. On May 6 Hoy had published notices from the Freedom of Expression campaign of the WAN.
On May 26 the Minister of Justice, Johana Pesántez, announced that within the project to reform the Penal Code that the government will send to the National Assembly there is a provision eliminating the crime of contempt, contemplated in article 230. She also confirmed that the proposal would keep defamation in the Penal Code.
After the Popular Consultation of May 7, the national secretary of the pro-government movement Alianza País, Galo Mora, presented to the Contentious Electoral Court a case against the newspaper Hoy for having published an interview of a political nature on a day on which the law requires electoral silence. Two weeks later the case was dropped because the accuser had not provided all the information necessary.
The examination made of the government newspaper El Telégrafo by the General Controllers Office between January, 2007 and January, 2009 determined that one third of the copies were delivered as a courtesy and not sold, thereby producing a loss of $3.3 million for that reason alone. El Telegráfo has been managed by the government since 2007 when it was taken over from its previous owner.
On June 2, assembly member Lourdes Tibán demanded in writing that President Correa grant the right of reply that is enshrined in the Constitution and give over 16 minutes of time on a national broadcast hookup in three provinces to deny, according to her, a series of lies mentioned on another similar network that the president ordered to be disseminated on May 30. The government turned down the request, adding that according to the law, the hookups are only so that leaders of state can make reports to the people. However, the government has used innumerable such hookups to attack those it considers to be its opponents.
On June 4, President Rafael Correa asked on national television to sanction the magazine Vistazo because it had published an editorial in favor of a No vote on questions 3, 4, 5, and 9 (of a total of 10 questions) on the Popular Consultation, in its bi-weekly edition that circulated on May 4. Electoral silence began on May 5. In August, the judge of the Contentious Electoral Court (TCE), Alejandra Cantos, accepted the accumulation of all of the accusationsfive in allthat had been formulated against Vistazo.
On May 28 the state media and those that had been taken over mounted a personal attack against Jaime Mantilla, president of Hoy and vice-president of the IAPA, remembering the murder of Brazilian journalist Sandra Gomide, which had occurred eleven years before in São Paulo, Brazil. The state media reminded its readers that at that time it was said that Mantilla had had a personal relationship with the journalist.
On May 3, the state media and those that had been taken over mounted a massive attack against the newspaper El Universo and its late former director Carlos Pérez Perasso. An article published in the paper El Telégrafo linked Carlos Pérez to the construction of the land terminal in Guayaquil, which had presumably caused the State to lose millions of dollars. The events occurred during the 1980s and in 1992 the courts determined that the company in which Pérez held stock was not responsible.
On July 12, the National Electoral Council announced the official results of the Popular Consultation of May 6, in which Ecuadorians were quizzed on a total of ten questions, including two directly related to the press. Question 3 was approved with 44.16% of the votes being affirmative and 41.88 negative, 5.22% blank votes and 5.70% null votes. The text that was approved and went into effect in the Constitution is: Institutions of the private financial system, as well as private media companies of national scope, their directors and primary shareholders, shall not be owners, directly or indirectly, of stock and shares in companies outside of the financial or media areas, as the case may be. The respective control agencies shall be responsible for regulating this provision, in accordance with the constitutional framework and laws in effect.
Question number nine passed by 44.96% affirmative versus 42.04% negative votes, 7.74% blank and 5.26% null votes. The question asked: Are you in agreement that the National Assembly, without delay, should pass a communications law as established in the Organic Law on Legislative Functions that would create a Council on Regulation to regulate the dissemination of contents on television and radio and in written press publications that contain messages of violence, explicit sex or discrimination, and that would establish criteria of final responsibility of the communicators or the broadcast media?
On July 19, the first judge of Penal Guarantees of Guayas, Ángel Rubio, ordered the invasion of the home of and the arrest of journalist Peter Tavra Franco, of the newspaper El Universo, who had been sentenced to six months in prison and payment of compensation of $3,000 in a suit brought by Monica and Milton Carrera, stemming from the publication of a news item in February 2009. Tavra was sentenced in court for defamation and faces a new lawsuit for $10 million brought by the same plaintiffs.
On July 20, judge Juan Paredes Fernández, in the case of Rafael Correa against El Universo, sentenced the directors of the publication and the former opinion editor to three years in prison, and payment together of compensation of $30 million and the El Universo company to pay another $10 million. The paragraph of the article No to Lies which brought about the suit says: The Dictator must remember, finally, and this is very important, that with a pardon, in the future a new president, perhaps an enemy of his, could take him before a criminal court for having ordered fire at his discretion and without prior warning, against a hospital full of civilians and innocent people.
This sentence against Carlos, César, and Nicolás Pérez, and Emilio Palacio was proffered by a temporary judge who processed in less than one work day the more than 5,000 pages and six hours of a hearing, giving his decision only minutes before the end of his term as a judge. A expert examination requested by the defense of El Universo determined that an ordinary person would require more than one hundred hours to read through the case.
The sentence was appealed by the parties. The President asked that the compensation be $80 million instead of $40 million. The Pérezes and Palacio asked for nullification. The case of Correa against El Universo has gone through the hands of several judges, most of them temporary or acting. Before judge Juan Paredes issued his decision, three other judges had been recused or replaced.
On the second level, the movement of judges continued. Eight changes, including leaves, resignations, and removals of judges took place before completing the set of three judges that would decide on the case. The defense lawyers of El Universo warned that the judges selected did not meet the criteria for their assignment. They based their statement on the 170th article of the Constitution, which states that for carrying out the function of a judge, the criteria must be followed of equality, equity, probity, opposition, merit, publicity, challenge, and citizen participation.
In spite of the fact that President Correa has insisted that the suit against El Universo is a personal matter, he has made use of public resources, such as using various national television hookups and time on them in his reports to the country to talk about the case as he makes his arguments. In his talk on July 23 he warned that if Gonzalo Marroquín, President of the IAPA, comes to Ecuador and calls him a dictator, he will expel him from the country.
On July 20 Emilio Palacio, former opinion editor of El Universo threw Gustavo Espinoza out of a press conference being given by the Pérez brothers. Espinoza is from the state television station Ecuador TV. Palacio also called him a fascist and government sympathizer. According to Espinoza, a member of the management of the newspaper said he was sorry for what happened and told him that it was not necessary for him to leave.
On July 26 the prosecutor of Pichincha, Jorge Nogales, asked the newspaper Hoy to submit the name of the author of the article Fregando la pita, published on June 27. The request corresponds to one made by Alembert Vera, attorney for the President of the Republic on July 13. This measure is taken prior to a possible legal case. The article was published under the signature of Diego Oquendo and makes reference to the honoraria that the Presidents lawyers could earn from the $80 million suit against El Universo.
On July 27 the Second Criminal Court of Loja found commentator Freddy Aponte guilty of calumny and public defamation in a case brought by Bolíva Castillo, former mayor of that city, and sentenced him to five years of incarceration. On his radio program he had called the ex-mayor a corrupt rogue, a thief who has stolen city lands.
On July 27, Carlos Sosa and Fabricio Vite, reporter and cameraman for television station Telecosta of Esmeraldas, were attacked as they were covering a hearing in the Provincial Court of Justice in Esmeraldas. An armed man dressed in civilian clothes prevented them from entering the hallways of the court and ask the police to remove them by force.
On August 3, assembly members Tomás Zevallos and Guillermina Cruz requested through the prosecutors office a copy of the program La Mañana of August 3, broadcast over Teleamazonas. On the program, the representatives vote in the election of the president of the National Assembly had been described as polemical.
On August 6, 2011, during Saturday Chat No. 232, the President urged the citizens to bring suits against journalists, whom he called corrupt, and the owners of the media companies who, according to him, permitted deception, defamation and libel.
On August 8, the National Telecommunications Council notified the prefect of the province of Morona Santiago, Felipe Marcelino Chumpi, of its decision to terminate early and in a unilateral manner the concession of a frequency for the channel Telesangay of the provincial government. The prefect, affiliated with the opposition movement Pachakutik, said that the move was politically motivated.
On August 11, the legal representative of state television channel Ecuador TV brought a suit against Emilio Palacio for grave calumnious defamation before the courts, after Palacio had called the channel fascist and refused to make statements to one of its reporters.
On August 17, an advisor with the Ministry of Defense, Javier Ponce, told reporters of El Universo that he would speak only to the public media, since there is no chemistry with the private outlets. For years Ponce was a writer for the newspaper Hoy.
On August 20 photojournalist Stalin Díaz, of the newspaper Expreso, was arrested by police as he was covering a club in Guayaquil where an operation was being carried out for supposed illegal prostitution. Díaz went to the site to capture some graphics and the agents arrested him.
On August 24 a suit was made public which plaintiff Alberto Cajamarca brought against the channel RTS, a reporter, and several presenters of the program Vamos con Todo for moral damages. Cajamarca demands payment of compensation of $40 million from the channel, $10 million from reporter Eliana Justavino and $5 million each from presenters Paloma Fiuza, Jessenia Hati and Carlos Matamoros. According to the suit, the program showed a recording made with a hidden camera of the plaintiff, which is prohibited.
On August 25, a suit was announced brought by Carlos Coello Baseke, manager of TC Television, in the hands of the State, against actress Adriana Manzo for supposed serious calumnious and non-calumnious defamation. He asked for compensation of one million dollars. According to Coello, Manzo sent a letter to the President of the Republic in which she expressed a series of offenses committed against her. The actress was part of the cast of the soap opera Fanatikda, on TC, from which she left on bad terms.
On August 26 soccer player Jaime Iván Kaviedes brought a suit against journalist Hugo Gavilánez and presenter Carla Sala, of the RTS channel, for calumnious defamation. Gavilánez had said days before that Kaviedes had been seen the day before training at a night club, insinuating that it was a return to the players manifest addiction to drugs and alcohol. Three days later the news presenters offered a public apology, but Kaviedes declared that it was not sufficient and that he hopes to set a precedent with his lawsuit.
On August 26 a judge of the Fifth Court of Criminal Guarantees of Pichincha, Raúl Martínez, accepted the accusatory report from the prosecutors office against thirteen persons who on September 30 entered governmental television channel Ecuador TV by force, and ordered them to stand trial for the crime of sabotage of public services. The accused are facing a sanction of between eight and twelve years of reclusion and a fine of between $85 and $175. In his action, the judge maintains an order of preventive detention against several of the accused and other precautionary measures.
These events occurred on September 30, 2010, when the government had decreed a State of Emergency and had suspended the transmission that private channels were making to report on the day that began with an police complaint for better salaries and ended up as a supposed attempt at a coup détat. The demonstrators wanted to enter Ecuador TV because they were opposed to the way that it was telling of events and they wanted to give their own version.
On September 14, the Superintendency of Telecommunications (Supertel) notified seven radio stations (Quito, Centro, Genial Exa, Visión, Platinum of Quito; Radio City, of Guayaquil; and Ondas Azuayas, of Cuenca) of the initiation of a process of judgment for having joined together, without authorization, to broadcast a program dealing with freedom of expression on August 10, the anniversary of the First Shout of Independence. The measure was dropped on October 6.
On September 25, President Correa threatened to start a new case against El Universo for having allowed assembly member Cinthya Viteri to publish an article in that newspaper in which she described him as ignorant, a braggart, and a coward, and accused him of wanting to fire her mother, the president of the Court of Justice of Guayas, in order to put the judges under his control. On this occasion, Correa assured that the Pérezes would be committing the crime of collaborating perpetrators and even co-perpetrators of the supposed defamation.
On September 27, the Second Criminal Court of Guayas, which is handling the suit brought by President Rafael Correa against the newspaper El Universo, ordered execution of the sentence proffered at the first level by a temporary judge against Emilio Palacio, by declaring as abandoned the appeal requested by Palacios attorneys.
On September 29, the government interrupted the program La Mañana 24 Horas, which is presented by journalist Janet Hinostroza, to broadcast a program about six minutes long. The government said that the journalist has scarce qualification as a journalist that prevents her from seeing beyond her own interests and called Alejandra Cevallos a liar. Cevallos is a student who had been interviewed the day before and is one of the thirteen persons that the government has accused of sabotage and terrorism for breaking into the facilities of state channel ECTV in protest because that afternoon the government had suspended the broadcasts of the private channels and reported only from the mentioned station.
Since October 11, the Organic Law on regulation and Control of the Power of the Market has been in effect. The document reforms the Radio and Television Broadcasting Law and prohibits those who hold or control more than 6% of a national media company to have shares in other businesses. It does not define what national media are but this definition could be in the implementation regulations or in a future communications law. Pro-government assembly members propose that national refer to newspapers that sell copies or the equivalent to 0.5% of the population, that is to say, more than 70,000 daily copies, or electronic media that have a presence in areas that cover 30% of the population or more.
On October 12, the Third Criminal Court of Guayas accepted hearing the lawsuit for calumnious slander brought by Enrique Arosemana, general manager of the government channel ECTV, against Emilio Palacio because days before the latter had said that the channel was a propaganda machine of the government dedicated to insulting and ridiculing citizens.
On October 14, the government sent to the National Assembly its proposal for reforming the Penal Code in which the crime of defamation is maintained with sanctions that go from six months to two years of prison, but if the slander is against an authority the prison term may be up to three years in length. Also, if a outlet fails to give authorities the name of the journalist who writes the offending article liability for its content falls to the directors of the medium.
The code also presents the concept of economic panic and sets a prison term of between seven and nine years for someone who, either from within the country or outside it, causes harm to the economy or to the financial system by disseminating false information.
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