Translation: Analysis of Ecuador’s new media law

This is a translation of an analysis of Ecuador’s new media law by Pascual Serrano, originally published on Spanish site eldiario.es on 29th June. Serrano is one of the founders of Rebelión, an indispensable Spanish-language news resource and has published numerous books on communications media.

Ecuador has come in for criticism in Western media for what is claimed to be restrictive laws that silence dissent. See, for example, this post by Roy Greenslade in the Guardian, titled ‘Journalism under attack across the globe imperils press freedom’ that reported on a Committee to Protect Journalists report citing Ecuador in this regard. An Index on Censorship piece claims that the ‘forced publication of government-friendly stories is a terrifying prospect‘. Terrifying perhaps, if it could be proven to exist.

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On 14th of June past, Ecuador’s National Assembly approved the Communications Law, a piece of legislation that, as established by the 2008 Constitution, should have come into force a long time ago. This imperative was one of the elements that the country’s president, Rafael Correa, had to remind people of in each interview he gave in Spain, in which the matter of the law was sure to be raised by a journalist suggesting that it amounted to an attempt by Correa to interfere with freedom of expression.

If communications have been the object of a heated debate throughout all of Latin America, in Ecuador this has been accentuated by the long period of debate relating to the preparation of this new law. Let us not forget that Ecuadorean law was the first to establish that the banking sector was incompatible with ownership of communications media. After popular consulation by referendum in May 2011, a majority of Ecuadoreans expressed their stance favouring that “neither private financial sector institutions nor private national communications firms, including their directors and main shareholders, may occupy positions, directly or indirectly, through shares or stakes, in firms other than financial or communications activity, as the case may be.” That is, it was inadmissible to be a director or important shareholder in a financial entity and to be a director or important shareholder in a media outlet. The recent decisions of the government of Ecuador, giving refuge to Julian Assange and Edward Snowden [this was written when it appeared clear that Snowden would get asylum in Ecuador] have turned it into a major protagonist as regards communications policies.

The new law, inevitably since it came from a left wing government and parliament in Latin America, has been described once again as a “muzzling law” by the proprietors of major media firms and business organisations. Hence it is important to focus on its textual content.

One of its main characteristics is to uphold the sovereignty of communications media, hence (article 6) Ecuadorean communications media that are national in scope cannot belong either to foreign firms or citizens of other countries. By contrast, in Spain, television channels (Telecinco) and newspapers (El Mundo) are either majority or entirely owned by foreign shareholders.

The Ecuadorean law also establishes that all communications media (public, private and community-based) must draw up codes of ethics to which professionals may refer in order to refuse compliance with any instruction that runs contrary to the code. The failure to comply with codes of ethics can be reported by any citizen or organisation through the Information and Communications Supervisory Board.

Another major problem relating to news content is truthfulness, something already covered in the Spanish Constitution without there being any legislation in our country that develops it. The Ecuadorean law (art. 10) establishes “verification, timeliness, contextualisation and contrast in the transmission of information of public relevance or general interest” as well as “abstaining from intentionally omitting or distorting elements of information”. Equally (art. 22), it is established that “every person has the right for information of public relevance that they receive via communications media to be verified, contrasted, precise and contextualised.”.

One of the most controversial articles and the one most cited in Spanish media regards “lynching by media” (art. 26) in which it is indicated that “it is forbidden to transmit information that, whether directly or via a third party, is produced in a concerted form and published repeatedly via one or more media outlets, with the purpose of damaging a natural or legal person or reducing her public standing.” According to the law, the body that establishes the measures to take will be the Supervisory Board for Information and Communication, a non-government entity, elected by the Council for Citizen Participation and Social Control, and its sanction will be limited to the demand for the publication of a public apology. It does not seem logical that the prohibition applies if the facts supplied are true, given that, as we pointed out earlier, article 22 establishes the “right to receive information of public relevance that is true”.

The democratisation of communication and information has been one of the major objectives of the Latin American governments. To this end, Ecuador’s Communications Law establishes that the relevant public servants and public authorities will work to “create the material, legal and political conditions to arrive at and deepen the democratisation of property and access to communications media, to create communications media, to generate spaces for participation, for access to frequencies on the radioelectric spectrum assigned to radio and television services”.

This democratisation of communication is closely related to media ownership. To this end, the Ecuadorean law establishes an equitable distribution of frequencies (art. 106) along the lines of what other countries such as Argentina, Uruguay or Brazil have done. Thus “the frequencies on the radioelectric spectrum destined to the functioning of open signal radio and television stations will be distributed equitably in three parts, reserving 33% of these frequencies for the operation of public media, 33% for the operation of private media, and 34% for the operation of community media”.

Similarly (art. 113) prohibits any natural or legal person from concentrating or accumulating licences for frequencies or signals for radio and television. Thus the same person cannot be granted two radio or TV licenses. Precisely the opposite was done in Spain: when the number of broadcasting licenses multiplied due to the implementation of Terrestrial Digital Television, the government opted to concede the new signals available to the same firms that already held the analogue licences.

In Ecuador, the licence is for a period of fifteen years and, also by contrast with Spain, where certain firms have rented out their licence and are making a profit from it, there is a prohibition on “any act that is oriented towards any other natural or legal person enjoying or profiting from the use of said frequency licences. If any natural or legal person, by using any legal format, seeks to sell, resell, transfer or rent out frequency licenses assigned to them by the State, said transactions will be null and void and will generate no right for whoever supposedly acquires them; on the contrary, this will be sufficient cause for the licences to be immediately revoked and the frequencies licensed out will return to administration by the State.”

A very novel element to this law is the prohibition on prior censorship, but not only by government authorities, as is established in our legislation, but also, as well as by a public servant or authority, by “shareholder, partner, advertiser or any other person who in carrying out his or her functions or in this capacity revises, approves or denies content prior to its transmit via any communications medium, in order to obtain by illegitimate means a benefit for himself or herself, to favour a third party and or to damage a third party”. The law establishes (art. 18) that “communications media have the duty to cover and broadcast facts of public interest. The deliberate and recurring omission of matters of public interest constitutes an act of prior censorship. Those who engage in prior censorship or carry out acts that lead to it taking place in an indirect manner will be subject to administrative sanction (…)”.

The law dedicates an entire section to the rights of communicators [‘comunicador‘]. A conscience clause is established in it with the object of guaranteeing their independence. By virtue of this clause they can have grounds to refuse an activity contrary to the Ethics Code of the firm or to refuse to sign a text authored by them if it has been modified. It is also indicated that the exercise of the conscience clause cannot be considered under any circumstances as legal grounds for the sacking of the communicator. Moreover, journalists will have the right to make their disagreement with the media outlet public, via the outlet itself.

Equally they will have rights to remuneration in accordance with salary scales fixed by the competent authority, to social security and other labour rights, in accordance with their functions and competencies. In private media firms, in the case of risk coverage, to be covered with private insurance policies for life, accidents, third party damage, legal assistance, loss or theft of equipment.

Contrary to what has been denounced with regard to the new communications laws in Latin America, the Ecuadorean law does not promote a submissive attitude with regard to public powers, on the contrary it establishes (art. 71) that there is a need to “develop the critical sense of citizens and promote their participation in matters of general interest” and that communications media must “serve as a channel for denouncing the abuse or illegitimate use that state functionaries or particular individuals might make of public and private powers”.

In the same manner it is established (art. 72) that “during the election campaign, communications media will ensure that candidates from all political movements and parties participate under conditions of equality in debates, interviews and opinion programmes carried out with the purpose of allowing the citizens to acquaint themselves with the political profiles, programmes and proposals for posts assigned by popular election.”

Citizens will also have a greater role in media. The Audience Defender [Defensor de las audiencias] is created, such that media with national coverage will be obliged to have a defender of their audiences and readerships, designated through public concourse organised by the Council for Citizen Participation and Social Control. Moreover they will have mechanisms of interaction with their audiences and readerships, and spaces for the publication of errors and corrections. Regarding public media, these will have an editorial council and a citizen council; and “their editorial autonomy will be guaranteed”.

A fundamental component of Latin American communications is community media. These are “those whose ownership, administration and management correspond to non-profit collectives and social organisations, to communes, communities, peoples and nationalities”. They are not for profit and for the benefit of society.

The Ecuadorean legislation establishes (art. 86) that “the State will implement the necessary public policies for the creation and strengthening of community media as a mechanism for promoting plurality, diversity, interculturality and plurinationality; such as: preferential credit for the setting up of community media and the purchase of equipment; exemptions from taxes for the importing of equipment for the functioning of community-based print media, radio and television; access to training for media, administrative and technical management of community media”. Curiously, Spain’s General Law of Audiovisual Communication not only does not provide any support for this kind of media, but rather prevents their development by establishing a limit of €100k annual funding to television channels and €50k to radio stations.

By contrast, in Ecuador (art. 87), “through contracting mechanisms that favour solidarity-based economics, set forth in the law of Public Contracting, State entities at their different levels will  use community media in the contracting of advertising, design and other services, which entail the transmission of educational and cultural content. Public entities will be able to generate competitive grants for cultural and educational transmission via community media”.

Ecuadorean legislators have shown their concern for supporting domestic production. Hence the obligation is established for national audio-visual media to destine (art. 97) at least 60% of their daily programming to the transmission of domestically produced content. Equally, with regard to music, radio stations that broadcast musical programmes, music produced, composed or performed in Ecuador must represent at least 50% of musical content in all of its timetabling, with the payment of author rights in keeping with the law’s provisions.

As Sally Burch, community journalist of the Latin American Information Agency (ALAI) has pointed out, “the passing of the Law, no doubt, does not represent the culmination of the process, but rather a starting point, since, beyond the opposition offensive announced on a national and international level on the part of the mass media industry, which continues to call it a “muzzling law”, and the inevitable challenges in the courts, democratisation can only become reality to the extent that it is appropriated by the citizens, in particular by the popular classes, in exercising their right to expression”.

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