Ecuador

On June 25 there entered into force the Communication Organic Law and what was legally established with it was that communication is a public service and thus the government has to regulate it administratively. Treaty writers opposed to the law consider that the right to free expression has been degraded to the nature of public service. This change is one of the fundamental focuses of the political transformation that President Rafael Correa has carried out during the last seven years and that he had proposed to internationalize, as he announced at the OAS General Assembly in Cochabamba in 2012. Several people and groups have filed a lawsuit claiming the unconstitutionality of the law with the Constitutional Court, without response to date. In addition to the incompatibility of the law with international treaties those filing the lawsuit denounce the fact that the National Assembly in plenary session never discussed the stipulation of “media lynching” nor the creation of an Information Superintendence, both mentioned in the law. The Communication Law has 119 articles and includes rules for the dissemination of information through the media, the distribution of frequencies and the promotion of national art. The nine principle rules concerning the publication of information and free expression are: 1.Create the Council of Regulation and Development of Information and Communication and give it such functions as “establishing mechanisms for users of communication and information services,” “carry out studies regarding the behavior of the community on the content of news and communication media,” the drawing up of binding reports for the award of frequencies, among others. The Council is made up of five members, all close to the executive branch of government. 2.Create the Information Superintendence, which is the technical body for vigilance, auditing, intervention and control, with powers to impose sanctions. Therefore it is presumed that it is the entity that should watch that an information complies with the legal requirements of being “verified, corroborated, precise and contextualized.” On October 8 the Council of Citizen Participation of Social Control named Carlos Ochoa as the first Information and Communication Superintendant. Ochoa is a journalist with 30 years in television, radio and newspapers; he was the news editor of Gamatv, one of the television channels confiscated by the government. He headed the shortlist of candidates that the Ecuadorean President sent to the Council and he was challenged by three members of Congress and one member of the public. The challenges basically argue that Ochoa does not fulfill the profile of professional experience and that he lacks suitability, as once publicly and on repeated occasions he has insulted and criticized the independent press that he now should watch over, and also that he has identified himself with the government. In September Fundamedios published a study on the language used by Ochoa in his op-ed articles and television appearances. The study concludes: “Ochoa’s discourse is reckless, biased, shameless in its partiality. The privately-owned media are constantly demonized, which creates in the audience an example of disdain.” The study reviews several of Ochoa’s phrases about independent media, among these being: “They control information at their will … They regulate it, make it invisible …. They shape it …. They create what they very conveniently call ‘pubic opinion’ and which is only their very particular and biased point of view.” “A law that puts an end not only to their excesses, but also to their abuses …. The new law guarantees free speech.” “Miserable ones, yes miserable ones. There is no other word that fits them. And it is that one does not fail to understand how it is the big news media and their owners be so miniscule in solidarity and so friendly in terms of money. Money that they enjoy in heaps, thanks to the subservience to the system that they represent.” 3.It creates the precept of “media of a national nature” and stipulates that this denomination applies to media that have a presence in provinces wiith 30% or more of the national population. It requires national media to contract, remunerate and give space in its installations to an Audience Defender, an official chosen through a process carried out by the Council of Citizen Participation and Social Control. The Defender has the role of reviewing denunciations by readers and ordering rectifications or similar publications. At the time of writing this report no one has been named, it being estimated that the designation will come toward the end of the year. In addition, shareholders, executives and publishers of national media are prohibited from engaging in another economic activity. And if any member of the public associates himself or herself with them with a more than 6% shareholding in a media company they will come to be regarded as national. 4.It prohibits editors or owners of media censoring content, but at the same time they are made responsible for what is published. 5.It creates the offense of “media lynching.” At the time of writing this report there is no regulation clarifying the matter. 6.It requires media to publish information of “public interest.” The first warning in this regard was given by President Correa in September, when several media published news concerning a legal dispute that Ecuador and Chevron oil company are engaged in, in a space and in a manner that was not satisfactory for the government. 7.It stipulates that all people working full-time in the media on the task of editing and publishing information be professionals in journalism or in related careers. It makes an exception for community media and sets a term of six years for compliance with this requirement. 8.It orders that each media outlet create its own code of ethics and publishes it on its Web site. It must include a minimum of 30 rules established in the law. 1.Referring to human dignity: a )Respect the honor and reputation of persons; b) Abstain from having and disseminating discriminatory content and commentary, and c) Respect personal and family privacy. 2.Relating to groups of priority attention: a) Do not incite male and female children and adolescents to imitate behaviors prejudicial or dangerous to their health; b) Abstain from using and disseminating identifying images, mentions that go against dignity or the rights of persons with serious diseases or incapacities; c) Avoid positive or appreciative representation of scenes where fun is made of people’s physical or psychological handicaps; d) Abstain from publishing images or mentions identifying boys, girls and adolescents as authors, witnesses or victims of unlawful acts, except in the case that in application of the higher interest of the child it be ordered by a competent authority; e) Protect the right to image and privacy of adolescents in conflict with criminal law, in concordance with the requirements of the Childhood and Adolescence Code; and f) Abstain from publishing content that goes against the dignity of older adults or projects a negative view of aging. 3. Regarding the practice of journalism: a) Respect the constitutional requirements of verification, timeliness, contextualization and corroboration in the dissemination of information of public relevance or general interest; b) Abstain from intentionally omitting or distorting elements of the information or opinions disseminated; c) Abstain from obtaining information or images by unlawful methods; d) Avoid gruesome treatment of information on crimes, accidents, catastrophes or other similar events; e) Defend and exercise the right to the conscience clause; f) Prevent censorship in any of its forms, independently of anyone who seeks to carry it out; g) Do not accept external pressures in carrying out work as a journalist; h) Exercise and respect the rights of confidentiality of a source and professional secrecy; i) Abstain from using the role as a journalist or social communicator to obtain personal benefits; j) Do not use to one’s own advantage privileged information, obtained in a confidential manner in the exercise of one’s role as a journalist; and k) Respect copyright and rules of quotation. 4. Regarding media practices: a) Respect freedom of expression, of commentary and of criticism; b) Rectify, as soon as possible, reports that have been shown to be false or erroneous; c) Respect the right to presumption of innocence; d) Abstain from disseminating reports as if they were informative material; e) Take care that headlines be coherent and consistent with the news content; f) Distinguish in an unequivocal manner between news and opinions; g) Clearly distinguish between informative material, editorial material and commercial or advertising material; h) Avoid disseminating, in a positive or appreciative manner, irresponsible environmental conduct; i) Assume responsibility for the information and opinions that are disseminated; and j) Abstain from engaging in media lynching practices, these being understood to be dissemination of systematic and reiterative information, direct or by third parties, through news media designed to discredit a human being or juridical personage or reduce his or her public credibility. Non-compliance with the rules established in this article will be able to be denounced by any member of the public or organization to the Information and Communication Superintendence, which after proving the veracity of what has been denounced will issue a written warning, so long as it does not constitute an infraction that merits another sanction or administrative measure established in this Law. 9. It establishes that if within one year a media outlet re-offends by not publishing rectifications and public apologies requested by the Information Superintendant it will be fined a sum equivalent to 10% of its monthly invoicing. The fine will be doubled regarding each previous occasion in the case of reoccurrence. Before enactment of the Communication Law the offices of rapporteur for freedom of expression of the Organization of American States and the United Nations asked the President for his veto, considering it to go against international treaties that protect the right to free expression. On October 3 President Correa announced that he is studying withdrawing Ecuador from the Inter-American Human Rights System if it does not change at the General Assembly to be held in 2014. His main arguments are that the various IACHR committees have the same budget, that the headquarters be moved from the United States to another country, and that its non-compliance be obligatory for all the nations that belong to it. In these days in the National Assembly there is debate on the bill to amend the Penal Code. It is expected that defamation be made a criminal offense, that the word contempt be eliminated but that the offense of lack of respect for authority be maintained, that libel through social networks and the publication of information that is obtained without prior consent be made criminal offenses. On Thursday, April 11 journalist Fausto Valdiviezo was murdered in Guayaquil. According to eye-witnesses three hooded assailants attacked him and shot him three times. The police reported that Valdiviezo had suffered an attack the night before but he had not reported it to the authorities. It is not known if the crime was related to his work as a journalist. Within the hostile environment the press is subjected to it is very difficult, if not impossible, to apply the 2004 Law on Transparency and Access to Public Information. Being extended to practically all levels of government, whether federal or local, is the practice of rewarding or punishing media in the placement of advertising and the provision of information. There is an obligation that the media have to give explanations to the people, as they are considered to be providers of a public service. Given the lack of regulation neither the media nor almost any public or private body have complied with this law. As a consequence of legal requirements the country is undergoing a period of replacement of broadcast frequencies and redistribution of these, which is causing the shutdown of dozens of radio stations and television channels. Under the law those frequencies must be assigned to community and public media up to covering one third for each one of those sectors, plus one third of the private sector. In his or her daily work the journalist faces a countless number of aggressions, which go from provisional detention, threats of being put on trial, beatings and death, requests for public apologies, to harassment and attempts at discrediting through dozens of television channels. For example, to date La Hora reports its having had 48 administrative and labor actions taken out against it without even a fine being set. Journalists Freddy Aponte and Yaco Martínez were declared innocent in trials that they underwent, respectively, against the former mayor of the city of Loja and the former Carchi governor. On September 20 there was a new million-dollar lawsuit filed against the press, when the judiciary admitted a $30 million suit that former Esmeraldas judge Ivonne Boada Ortiz brought against the newspaper La Verdad and four of its representatives for having reported, quoting the Security Minister, that she had participated in bribery. Chronology of the most important events in this period: On March 4 the Twitter account of Carlos Andrés Vera, a journalist and film-maker critical of the government, was suspended for four days for reasons that were not explained. That day Vera had published five tweets in which he questioned the Ecuadorean government’s proposal to change the Inter-American Human Rights System. The account was reactivated on March 8. On March 8 Judge Bayardo García in Carchi province sentenced journalist Yaco Martínez, executive president of the newspaper La Nación in that jurisdiction, to one month in prison and payment of $30,000 for non-serious defamation of former governor María Helena Villareal. On March 11 caricaturist Xavier Bonilla, who published his works in the newspaper El Universo under the pseudonym Bonil, complained of having received threats and hostile remarks that increased due to his publishing a caricature for which President Correa demanded the newspaper apologize. March 12 journalist Juan Alcívar, correspondent of the newspaper La Hora in the city of Concordia, Santo Domingo province, reported that police officers and public officials raided his home because allegedly it occupied part of the sidewalk without municipal permission. He said that the action was part of a persecution by the local mayor, Walter Ocampo, over his work. Alcívar since 2010 has been facing a charge of terrorist aggression made by the mayor. In addition he has denounced harassment and attacks on other occasions. On March 18 Ecuavisa television publicly apologized to the Ecuadorean Armed Forces for having broadcast a report based on a document supposedly forged, whose authenticity was not confirmed by the channel. The report referred to alleged favoritisms and irregularities at the time of evaluating the career of officers facing advancement. On March 16 President Correa had asked Defense Minister María Fernando Espinosa to take legal action against the channel. The journalist who wrote the report, Freddy Barros, was fired. Despite the apologies on March 30 the president again threatened to sue Ecuavisa if it did not apologize to Minister Espinosa for the same reason. The channel publicly did so on April 1. On March 19 the Electoral Dispute Tribunal upheld the sentence against former presidential candidate Nelson Zavala for having made comments regarded as homophobic, ordering him to pay a fine of $3,180 and removing his political rights for one year. During the electoral campaign Zavala had said that homosexuality is a “severe behavioral disorder.” On March 20 Banks Superintendant Pedro Solines, following the shutdown of operations of the Banco Internacional bank, warned he would investigate and bring “the full weight of the law” against persons who spread false rumors about financial entities. He said that he had already deployed intelligence teams and pointed out that to spread these kinds of versions is a crime of “destabilization of the state.” On March 25 a Teleamazonas television news coverage team was prevented by security guards and officials from filming outside the state-run Eugenio Espejo Hospital in Quito, where they were investigating an alleged case of medical malpractice. Reporter Gisella Bayona said that in addition the family members of the person concerned were prohibited from making statements to the news media. On March 26 the National Court of Justice declared as innocent Freddy Aponte, a journalist who had been sentenced to five years in prison for the crime of “fraudulent insolvency” by the Loja Provincial Court. The National Court determined that he had been declared in bankruptcy after being sentenced to pay indemnity of $55,000 to former Loja mayor Bolívar Castillo for libel in having called him a thief. On April 4 the National Communication Secretariat decided to charge La Hora with the crime of “incitement to hatred” for having published photos of the alleged conflict that two Amazonian communities (Waorini and Taromenane) were said to have had in the Amazon jungle. According to the Secretariat this publication arouses violence, hatred and a desire for vengeance. The public prosecutor’s office is initiating a prior investigation process. On April 18 journalist Christian Zurita Ron was pushed around and his cel phone was taken by force by Esmeraldas provincial public prosecutor Simón Lara Grueso as he was covering the trial of one of the persons implicated in a case of drug-trafficking called Resurgir. On May 2 activist and politician Trajano Andrade Viteri reported that the Manza radio station Marejada shut down its opinion program under political pressure from Mayor Jaime Estrada, due to criticism of the city’s health care system and indebtedness. Several days later the program was restored without further explanation. On May 7 the Carchi Provincial Court declared null the sentence that journalist Yaco Martínez had received on March 8 after Judge Bayardo García had declared him guilty of criminal libel of the former governor of that province, María Helena Villareal. The Court held that the case had not been dealt with in line with due process. In May, and at the request of the President, Ecuador’s Attorney General called in to testify several journalists who, according to the President, are suspected of being accomplices to or covering up the events of September 30, which for some was a police revolt and for the government was an attempted coup d’état. On May 17 Fundamedios reported that Ecuavisa television host and interviewer Alfredo Pinoargote had been discredited and verbally attacked by the President and his government on at least 25 occasions since 2011, with insults such as “stupid,” “liar,” “bad faith,” “ambassador of party politics,” “messenger of the local powers that be,” “iron face,” “bitter,” among many others. On May 20 an Ecuavisa news coverage team headed by reporter Alex Cevallos was physically and verbally assaulted by security guards at the Andrade Marín Hospital in Quito while it was gathering information about complaints by members of the public concerning the handing over of medicines. On June 1 the National Communication Secretariat (Senacom) called on the newspaper Hoy to rectify the headline “Correa describes homosexual marriage as a fiction,” on the basis that it did not faithfully reflect the AFP report on which it was based. Hoy published the main points of the Senacom request and an editor’s note in which he held that journalistic ethics had not been violated in publishing a headline different to that of the AFP. Some days later the Ombudsman asked the judiciary to initiate a protective measure against Jaime Mantilla, the Hoy editor, for “refusing to rectify a false information.” On June 17 at the hearing concerned Hoy gave way to the Ombudsman’s request and Judge Verónica Medina ordered the publication of the rectification and public apology. On June 6 four journalists were arrested inside the El Rodeo prison in Portoviejo while they were covering a police operation. The arrest order, on a charge of “attempting against state security,” was made by prison director Carlos Loor, despite the fact that the police had invited the reporters to cover the operation. The detention lasted 11 hours and in spite of the prison director’s request neither the Public Prosecutor’s Office nor the Police Headquarters found any motive to press charges. Materials such as photos, audios and videos were wiped clean by prison guards and the discovery of drugs and arms was recorded. The journalists are: Daisy Pico of the confiscated television channel GamaTV, Roberto Reyes and Iván Maestre of Ecuavisa and Rafaela Zambrano of the National Police. On June 28 Congressman Luis Torres filed a lawsuit citing unconstitutionality of 62 articles of the Communication Law. On July 15 reporter Iván Casamen with television station RTS was detained by police and held for more than 12 hours for the alleged offense of contempt of instructions of a police officer who was attempting to organize the area around a tunnel to the north of Quito that had collapsed. Casamen had to pay a fine of $7. On July 19 Canal Uno news director Rafael Cuesta Caputi reported having received death threats from unidentified persons. He said that perhaps “my work is bothering someone,” without further comment. On July 22 there came into being the Council on Regulation and Control of Communication with five members who are close to the President. They are: Patricio Barriga, a journalist who worked at privately-owned media and heads the Office of Assistant Secretary of Communication, who will lead the Council; Paulina Mogrovejo, representing the Office of Ombudsman – the Ombudsman was Assistant Secretary of the Regime and his delegate was Rapporteur of the Assembly Committee chaired by legislator of the Alianza PAIS party Betty Carrillo; Tamara Merizalde representing Doris Soliz, Minister of State, who in turn represents the Childhood and Adolescence Council; Roberto Wohlgemuth, who worked in the Presidency and in the communication area along with Fernando Alvarado; Hernán Reyes, a university professor, who was an article writer and member of the Editorial Board of the government newspaper El Telégrafo. On August 7 Judge Sheyla Aguilar of Manta declared as prescribed and ordered the archiving of the libel suit filed by public prosecutor Alexandra Bravo against El Diario and La Marea and five of their employees, calling for three years’ imprisonment and $1.5 million in damages. On August 8 the Communication Superintendence suspended the frequency of Ecotel radio in Loja, declaring that the station was operating outside established technical parameters. An attempt to forcefully enter the radio station’s plant by the authorities was frustrated due to the fact that some 300 demonstrators arrived there and were opposed. However, its five repeaters were able to be taken over and taken off the air. The radio’s director, Ramiro Cueva, holds that procedures were violated, due to the fact that for this case there is an as-yet unresolved administrative process. In addition he said that this was a political retaliation, as his radio is critical of the government. On August 8 Pablo Romero of the National Intelligence Secretariat asked the National Assembly to make publication of confidential government information a criminal offense and the Constitutional Court be the one to be in charge of giving prior approval of publication of that information. In August the Communication Council created the Communication and Rights Laboratory, despite the fact that such an entity is not contemplated in the Communication Law. This body has the objective of “preventing, detecting and detaining messages that encourage violence, discrimination, racism, addiction, religious or political intolerance, and violation of the right of persons.” It will issue an annual report, quarterly bulletins and a discussion blog. It is made up of representatives of the National Higher Learning Institute, the Citizenry Participation Council and the Office of Ombudsman. On August 19 President Correa said via Twitter that if a popular consultation was called to ask the people if he would leave the oil in the Yasuní national park underground to preserve nature, it would also ask if the Ecuadoreans want to prohibit printed versions of newspapers so that only digital ones would remain and thus prevent the cutting down of trees from which newsprint is made. On August 21 National Communication Secretary Fernando Alvarado demanded that El Universo apologize to the public and rectify a news item that in his view included tweets that go against the honor and good name of President Correa. The item dealt with the government’s resolution to start exploitation of oil in the Yasuní national park. Alvarado feels that the information published in the tweets is not information of public relevance but it does violate Ecuadorean laws, for example Articles 7 and 23 of the Communication Law. El Universo published Alvarado’s letter and apologized. On August 28 Ecuadorean Presidency Legal Secretary Alexis Mera proposed to the National Assembly that libel committed on social networks be punishable by sanctions that include imprisonment of two to four years. On August 30 the Environment Ministry recalled that under 2011 legal terms in order to film in national parks, among them the Yasuní, interested parties must hand over a $500 check as a guarantee, explain the report’s script, give its title, give copies of the ID cards of the authors and the date of delivery of what is filmed. Before publication the filmings must be reviewed by the ministry. On September 3 a group of some 50 members of the public – journalists, writers, politicians, businessmen, intellectuals, among others – presented a legal claim of unconstitutionality of the Communication Law. On September 18 Guayaquil radio station Centro stopped broadcasting after the Telecommunications Superintendence and the Public Prosecutor’s Office shut it down due, according to the authorities, to non-compliance with the frequency concession contract by owing several monthly operating quotas. On September 20 the judiciary began action for dealing with the libel suit filed by former Esmeraldas judge Ivonne Boada Ortiz against the Esmeraldas newspaper La Verdad, its president Mario Gutiérrez, its manager Nathaly Ibarra, its publisher Saúl Ibarra and its editor Rodrigo Jácome. The former judge is seeking $10 million in damages from the newspaper and another $20 million from the defendants. The lawsuit comes after publication of a report headlined “Fugitives From La Roca Hide In Colombia” on April 20, in which it is said, “Serrano (Security Minister) also denounced Judge Ivonne Boada … who had the role of intermediary … to attempt to bribe the judge ….” On September 21 President Correa, during his weekly message to the nation, tore up copies of Hoy, La Hora and El Comercio, annoyed because, in his view, the media did not give sufficient coverage to the actions that the government has carried out to demonstrate to the world the harm that, according to the courts, the Chevron oil company did to the Ecuadorean Amazon region during the decades in which it operated there. The President warned the media to apply the Communication Law so that they publish news of public interest. Correa’s main complaints were: that the media published in secondary spots a photo of him with his hand covered in oil; that they gave a lot of space and credibility to a bulletin from the Court at The Hague which apparently exonerates Chevron, which manipulated motivation that it had for the construction of a platform and the calling of a consultation of the people to define the exploitation of the Yasuní’s natural reserves. On September 24 the Office of Ombudsman ordered Extra to publicly apologize to women for a report published on April 11 in which the reporter gives the profile of a kind of woman and her interested behavior at a party and living at the expense of men who can pay her costs. On September 24 Banks and Securities Superintendent Pedro Solines denied a request for information made by Congressman Cléver Jiménez about the activities of state-owned insurance companies Sucre and Rocafuerte. He justified his decision by saying that the reports of the audits of those companies are confidential On September 25 Judge Hilda Garcés prohibited the circulation of the book “Una Tragedia Ocultada” (A Hidden Tragedy) which speaks about the alleged killing of some 30 members of Amazonian tribes. She gave the order one hour before the launch of the text on the argument of protecting the rights of a girl who appeared in the invitation. The work was co-authored by Miguel Cabodevilla, Milagros Aguirre and Massimo de Marchi. On September 26 the federal government, invoking its commitment to the Constitution and to freedom, rejected the judge’s ruling. On September 27 Judge Garcés overturned the ban on sale of the book, after proving that the photos it contains do not affect children. On October 3 journalist Juan Carlos Calderón of the Web site Plan V formally complained to the Public Prosecutor’s Office of having received death threats following the publication of the results of investigations into alleged corruption regarding the contracting of state insurances. The Minister of Government offered to look into the case and provide police protection for Calderón, who accepted it for his family members. On October 8 La Hora reported having been subjected to government harassment through 48 administrative and labor actions taken out against it without even a fine being set.