16 October 2014


Expression and communication have become a public service. This is established by the Communications Act of June 2013 and by an award of the Constitutional Court dated September of this year. In order to rule and to control this public service, two entities exist and are fully operational: the Council for Information and Communication Regulation and Development (Cordicom) and the Superintendence of Information and Communication (Supercom), which employ about 300 officials to control and track newspapers, TV channels and radios in search for non-compliances with the law. They also retain private companies to fulfill this task. In June, the results of the first monitoring were published after reviewing every news or commercial ad to determine whether it contain any discriminatory, violent message or if it encouraged any sexual, work crime or others. These entities constantly conduct forums and activities to explain the new legal framework to Ecuadorans and to try to prove the appropriateness of the Communications Act. They also publish reminders and advices when they deem any subject is receiving inappropriate treatment. In July the Cordicom  issued a “pronouncement”. It said that the media were giving inappropriate treatment to the bill called Financial Code, as they were not being rigorous and not contextualizing the facts, which, added, could create an undue nervousness among bank depositors. On June 26th, the incumbent block of the National Assembly delivered to the Constitutional Court a package of 17 constitutional amendments, which among other aspects indicated that the communication should be considered a public service (so far only contemplated by the law), and set forth the possibility that all popular election positions could be indefinitely reelected. The court must decide whether the National Assembly should address the reforms or if the citizens will be convened to a referendum. In September the Constitutional Court rejected the arguments of the three claims of unconstitutionality proposed by several organizations against the Communications Act and ratified that communication was a public service. The court asserts that the Act does not attempt against freedom of speech and is in agreement with the Constitution and the international treaties. It recognized the unconstitutionality of few subjects relating to the substance. The government intends to internationalize this new concept and it already submitted to the Latin American Parliament (Parlatino) a bill to have member countries declaring communication as a public service and setting up regulatory agencies such as Ecuador’s Supercom, among other proposals. One year and four months after the enforcement of the law, the following has been achieved: Significant reduction of investigative journalism among independent media: i.e. high level of self-censoring. Closing down of Hoy newspaper due to the impossibility of such media to finance its operations through loans or capital increase, after being subject, in agreement with its senior managers to economic boycotting and permanent political harassment After 32 years, Hoy printed media ceased to circulate on June 30th. Jaime Mantilla, its director, stated the impossibility to continue with the newspaper due to the commercial boycott and the political persecution it was subject to. He also blamed the Communications Act for creating a climate absolutely adverse to the development of journalism. Few days later the company was intervened by the Superintendence of Companies, removing Mantilla from management. On July 4th, five days after its closure, the Supercom fined Hoy with US$57,800 for failing to publish the number of copies on the cover for 17 days.  It also fined El Nacional of Machala for its 26-day non-compliance and the newspaper La Prensa of Riobamba for the same reason. La Hora of Portoviejo and Meridiano of Guayaquil have also closed down. Dozens of sanctions and fines on the media due to administrative infractions and failure to comply with journalistic ethics standards provided by the law. A substantial increase has been recorded of complaints against the media by the citizens, even due to minor details on the news. Start of the process to select an Ombudsman, pursuant to the law, which will force the media deemed to be “national” to retain and pay an officer selected by the Council for Citizen Participation and Social Control. According to Cordicom resolution, at October 7th there are 61 national mass media, namely 34 radios, 20 TV channels and 7 newspapers.  The senior managers of these media and those holding more than 6% equity ownership shall not have another economic activity. The Organic Code of Criminal Procedure was enforced on August 10th and it contemplates the following: Elimination of the injury crime, as it does no longer mention it. It is substituted by slandering, which will subject every individual making a false statement of a crime to imprisonment for 6 to 24 months. However, the law provides for exemption if the accused proves the accuracy of his statement or, if before the issue of an enforceable sentence, the individual voluntarily retracts and submits public apologies. It creates criminal responsibilities for companies, e.g. mass media companies. Although the word “contempt” is no longer mentioned in the code, it is present in Articles 230 and 493, which establish fines from six months to three years of imprisonment for individuals who offend the President of the Republic or the authorities through threats, disguised threats or slandering. Exercising an activity, such as journalism without a professional degree may be considered a crime against public faith. It punishes the “crime apology” with imprisonment from 15 to 30 days, without defining what it means and in an environment where the press is frequently accused of committing such fault. The “economic panicking” crime that imposes from seven to ten years of imprisonment and a fine of 200 unified basic salaries to the individual who “inside or outside the country, publishes, disseminates or discloses false news causing damage to the national economy aimed at altering the prices of goods or services to benefit a specific sector, market or product”. The “financial panicking” crime states: “The individual who disseminates false news causing alarm in the population and the massive withdrawal of deposits from any institution of the financial system and those held by the popular and joint economy institutions that compromise the stability or bring about the definite closing of the institution shall be punished with five to seven years of imprisonment”. According to a report from Fundamedios, the code typifies certain crimes in such a vague manner that they could become attempts against freedom of speech. These include: apology, rebellion, insubordination, incitation to discord and terrorism. The Monetary and Financial Code sets forth sanctions on those who disclose information tagged as reserved by the Monetary Board. According to Fundamedios, at August 31st the following numbers have been recorded: 125 processes held by the Supercom, 25 sanctions against the media, 4 printed media closed down, 4 media denounced for failing to cover in-depth the President’s visit to Chile, a caricaturist sanctioned, 7 sanctions to a TV channel (Mitad del Mundo Cayambe Visión 9), 3 sanctions to a printed media (Extra), 7 media fined, a case of self-censoring of a development disclosed to the public and 4 humoristic programs denounced. The Supercom sanctioned Extra and forced it to give public apologies for publishing the photograph of a model under the heading “Tremenda Potra Carajo” (What a mare, OMG!).  The “defense” of the model was sponsored by a member of the government assembly, while the model showed herself pleased with the publication. Supercom directed the news presenter of Ecuavisa, Alfredo Pinoargote, to publicly apologize for having said: “... there’s a climate or a system set up to throttle freedom of speech, for example, you can no longer treat gays as “maricas”; afros can no longer be treated as “negros”; thieves can no longer be treated as such …”. The public administrative control of the Association of Newspaper Publishers of Ecuador was transferred to the National Secretariat of Communications (Senacom), an entity reporting to the Presidency of the Republic, just as other 30 non-government organizations linked to journalism. In May, Ecuavisa TV channel announced in its evening newscast it would refrain from informing an allegation made by the Ecumenical Commission of Human Rights on the assumed restriction of civil rights in Intag community, Imbabura, in light of a copper mining exploitation as it could no longer comply with the Communications Act because neither was it able to ascertain physical evidence on the allegation nor it could visit the site with its team of reporters. The Senacom forced the channels Ecuavisa and Teleamazonas to broadcast the program Pulso Político, produced by the seized TC, referring to the government proposal to have a new financial law. Ecuavisa spread a message where it advised the news were being given under protest and undue pressure. Supercom gave both Mario Lema Cachinpuedo, legal representative of Mitad del Mundo TV, Cayambe Visión and its news director, Williams Alonso Ramos a written admonishment, because according to the authority they intentionally misrepresented information and opinion elements disseminated. Supercom fined newspaper La Hora with 2% of the average monthly invoicing of the last quarter in its Esmeraldas edition, after determining it assumed an “institutional position” on the guilt of people involved in a legal investigation in advance of having the court issue a sentence, through the publication of the news “Security videos tell on the assumed murderer of the taxi driver” on May 7th. According to the authority, the media used “morbid” images and texts to tell the news. To support their statement they mentioned a fragment of the news that states: “...blood was coming out the injury in his jugular, staining his clothes …”. On August 1, Ecuavisa announced it would no longer broadcast the compulsory government campaign called The Citizens speak to the Media, where many people criticize journalists and the mass media. The channel assured it made the decision on the basis of a "decency principle" and because it cannot accept being forced to broadcast messages that slander and discredit journalists. The government’s Secretary of Communications, Fernando Alvarado, qualified the debate triggered in the social network as positive and announced he would make adjustments to the campaign. On the following day, Cordicom issued a release where it asks Senacom to suspend the campaign to safeguard the rights of the citizen and journalist Alfonso Espinoza de los Monteros. On August 4th, the Communications Secretary apologized in writing. In August the first tender of frequencies under the Communications Act was conducted. The process stipulates a series of requirements so that the communicational Project presented by the parties interested will be in line with the Plan Nacional del Buen Vivir (“National Plan for a Good Life”). The process features two steps, the first is the qualification of the communicational project based on a series of technical, legal, communicational and financial requirements; The highest five scores advance to the second step, where they all go back to zero and are held to Cordicom’s scoring discretion of their communicational project. On August 26th, and considering all the provisions of the new Criminal Code, judge Lucy Blacio reduced to one year the imprisonment imposed against the former legislator Cléver Jiménez and his advisor Fernando Villavicencio for making a “malicious accusation or allegation” against President Rafael Correa. On August 28th, the former assembly member Fernando Balda was released after judge Fabiola Gallardo directed his release from prison due to the provisions of the new Criminal Code. Balda was serving a two-year sentence due to serious non-slanderous accusation against President Correa. On September 24th and 29th the social networks Facebook and YouTube removed from their records the video “Lo que Correa no quiere que veas” (“What President Correa doesn’t want you to watch”), showing images of the street protests of September in Quito, after the Spanish company Ares Rights requested the copies arguing copyright reasons at the request of the Communications Secretariat and the public TV channel Ecuador TV. Some public officials have refused to provide information requested by some citizens and journalists. Other important facts: On April 21st , the Supercom imposed a fine of four basic remunerations against the TV channel Mitad del Mundo Cayambe TV, because it could not deliver the original material of a program, according to its representatives, as a result of technical problems. This is the fourth fine against the channel during 2014, all of them sponsored by the mayor William Perugachi. On April 22nd the artist and TV producer David Reinoso announced the filing of a claim against the people and the organizations requesting the Supercom to remove from the Ecuadoran TV the humor programs they deem it discriminatory against women, homosexuals, indigenous people, Montubio peoples and other minorities. On May 5th, Cordicom concluded that the segment called El Nalgómetro of the program Soy el Mejor, Channel TC run by the government is sexually discriminatory and “turns woman into a thing”. The report indicates that on showing and naming the bums of the participants, their rights are being affected.  In El Nalgómetro the participant with the best bum is awarded the prize. On May 31st, the Supercom denied the rectification request submitted by the citizen Blasco Peñaherrera after the President of the Republic, in one of his addresses, accused Peñaherrera’s interviewer of “chimba” (false) and him of fascist, according to the complaint filed. On June 6th, the Supercom imposed a fine against Teleamazonas channel for failing to deliver within the deadline provided by the law a copy of a chapter of the humor program La Pareja Feliz, which had been requested by the activist to prove discrimination against women. On June 16th, the Supercom admonished two printed media of the province of Sucumbíos for allegedly violating the due respect for people. The media are the newspaper La Verdad and the weekly newspaper El Vocero. They were both accused by Nancy Morocho Velaña on the TV break news “La alianza de la corrupción”, “Dictadura en Sucumbíos”, “Perjuicio a Sucumbíos en más de 5 millones de dólares” and “Alianza PAIS se resquebraja”, which were related to the sectional election process. On July 30th, the Constitutional Court resolved that in order to publish news relating to cases of indigenous justice, the media must be authorized by the indigenous authorities, who assure that journalists only inform on physical punishment, such as cold water baths and whipping without contextualizing or reflecting the idiosyncrasies of the ethic group. On July 31st, the newspaper La Hora of Manabí ceased to circulate after 16 years. The farewell editorial mentioned that the newspaper was not economically viable and that the Communications Act also hindered its operation. On August 14th, President Rafael Correa refused to answer a question asked by journalist Paulina Bustamante, of Centinela newspaper in the province of Loja, after she stated in a public address she would not ask what, according to the journalist, had been told not to ask by government officials. On August 15th, newspaper El Meridiano, of Guayaquil published for the last time its printed edition. The senior managers assure that the economic difficulties make it impossible to finance the newspaper and announced the creation of a digital newspaper. On August 22nd the Supercom fined the radio Zapatillo of Loja, for failing to provide copies of the program Primer Plano led by the journalist Freddy Aponte. On August 25th, the journalist and former editor of El Universo, Emilio Palacio, alleged that a tweeter said his head was worth 100 thousand dollars after President Correa, in his Saturday address of August 23, said he felt like kicking him to death. By the end of August, the Communications Secretary Fernando Alvarado, refused to give to El Universo copies of pre-contractual documents and the contract subscribed by the government with the American firm Mcsquared. Days before the Ambassador of Ecuador in Washington, NatalyCely also denied access to the contractual information signed by her under delegation of authority. The firm was retained by 6.4 million dollars to undertake communication and image studies and strategies. On September 25th, the Supercom sanctioned the weekly newspaper La Verdad of Machala for failing to comply with the following six provisions of the Communications Act: not publishing on its website its deontological code (it was given 72 hours to do so); not respecting copyrights (admonishment in writing); not refraining from publishing an institutional position about a case under court investigation (2% of the average monthly invoicing of the last three months); publishing information affecting the rights of children and adolescents (10 minimum basic salaries – 3,400 dollars); violating the rights of children and adolescents against re-victimization in cases of sexual, domestic, physical violence (five basic salaries – 1,700 dollars); not meeting the classification of contents (three basic salaries – 1,020 dollars).