License to Censor: The use of media regulation to restrict press freedom - Ecuador

Population: 13,625,000
Press Freedom Status: Partly Free
Licensing for print outlets: No
Licensing of journalists: Yes
Independent Regulatory Body(s): No

Introduction

Ecuador has a diverse media scene, with hundreds of print and broadcast outlets, the vast majority of which are privately owned. However, press freedom has come under increased threat in recent years, following the election of Rafael Correa as president in 2007. In 2010, press freedom groups recorded an unprecedented number of cases of judicial harassment, intimidation, and physical attacks throughout Ecuador.³⁷ Additionally, harsh rhetoric has been employed by high-level officials, particularly the president, against media outlets, contributing to an overtly polarized political and media environment. A range of pressure tactics has been used against private and perceived anti-government news outlets, including advertising boycotts as well as restrictive regulatory policies that led to the shutdown of several outlets and the resignations of individual journalists. Correa has also attempted to counter criticism from private outlets by bolstering the growth and reach of state media outlets. As a result of this strategy, by 2010 the number of such outlets had increased to 20, a large number for a relatively small country.

Cases of judicial harassment against the news media by public officials have also increased, and are made possible by a legal framework that can be used to restrict media freedom. While the 2008 constitution does provide strong protections for freedoms of speech, expression, information, and the press, as well as the right to keep sources confidential, these protections are weakened by a range of provisions, codes, and regulations that keep Ecuadorian journalists on the defensive.³⁸ For example, the 1983 Code of Penal Procedure RO 511 establishes an exception to the universal principle of equality under the law by making alleged "crimes" by journalists worthy of special consideration and sanction.³⁹ Moreover, Ecuador's criminal code contains a number of provisions, including insult and defamation laws, which directly impact the practice of journalism.⁴⁰ Three articles of the code are dedicated to punishing the crime of insult – in Spanish, desacato – a criminal feature inherited from either autocratic regimes or a colonial power specifically designed to shield public officials from scrutiny by the rest of society.⁴¹ In all, there are 13 articles in the criminal code dedicated to punishing the crime of defamation. Applied in conjunction with the Law on the Professional Practice of Journalism, the code is an effective weapon for censoring journalists. In several of the recent cases brought against journalists, Correa, showing his disregard for the principle of separation of powers, was the main cheerleader behind the plaintiffs and judges whose actions helped silence both the news media and individual journalists. The likelihood of legal action has helped to spur an increase in self-censorship and a decrease in diversity of viewpoints presented on various outlets, particularly television.

Laws Relating to the Regulatory Framework

A number of laws regulate the behavior of the Ecuadorian news media to varying degrees. The country's constitution contains several articles that explicitly deal with media regulation, particularly of the broadcast sector. For example, with regard to the regulation of broadcast frequencies, Article 17 notes that:

"The state shall guarantee, through a transparent and equitable process, the concession of the frequencies of the broadcasting spectrum for the administration of public, private and community radio and television stations [...] and shall ascertain that the common good shall prevail in the assignment of these resources."⁴²

Additional paragraphs note that the state has the responsibility to "guarantee the creation and strengthening of the news media, be it public, private, or community, as well as the universal access to information and communication technologies, especially for those people and communities who lack such access or enjoy it in a limited fashion," and protects media diversity by forbidding any media "oligopolies or monopolies, direct or indirect, of the ownership of the news media and the use of radio frequencies."

Print outlets in Ecuador are not required to possess a license, nor are they required to be registered.⁴³ However, individual journalists in Ecuador do face strict regulation, as detailed in the 1975 Law on the Professional Practice of Journalism.⁴⁴ Article 1 of this law requires any person working as a journalist to hold the appropriate college degree, while other articles specify what positions in a newsroom are exempt from the mandate of Article 1, such as publishers, columnists, commentators, or experts in arts, sciences, literature, or religion. Article 27 mandates that for a person to be considered a professional journalist, he or she must also belong to a "provincial association." Article 37 specifies that all media outlets must issue a personal identification card to all employed professional journalists.⁴⁵ Such laws do not adhere to recommendations and rulings on best practices established by both regional and international bodies. For several decades, mandatory licensing of journalists (colegiatura) has been rejected by both the jurisprudence and the recommendations of the inter-American justice system. The Inter-American Court of Human Rights ruled in 1985 that the practice of journalism is a "fundamental human right," and that any government interference in this respect is incompatible with Article 10 of the American Convention on Human Rights.

The 1975 law also provides detailed instructions for the formation of a National Federation of Journalists (FENAPE), a statutory public entity under the authority of the National Assembly, and for the creation of a Code of Professional Ethics to establish the standards of behavior for the country's journalists.⁴⁶ By law, the code and all its bylaws must be approved by the Ministry of Public Education, thus granting considerable official control over the code itself. Also, the National Assembly is in charge of electing the members of FENAPE's Executive Committee, of establishing the membership fees, and of auditing the finances of the Executive Committee. The Executive Committee is made up of a president, three vice presidents, two secretaries, a treasurer, a trustee, and eight committee members. Their duties include enforcing the Law of Professional Practice of Journalism, submitting an annual report to the National Assembly, supervising the regional committees, maintaining a national registry of professional journalists, and formulating a code of ethics for all members. The existence of this government-supervised entity also contradicts internationally accepted tenets of media independence and preference given to self-regulatory mechanisms for print media.

Broadcast media are legally regulated by the 1975 Radio and Television Broadcasting Law, which was amended in 1995.⁴⁷ In addition to the regulation of private broadcasters and the protection of proprietary rights pertaining to production, transmission, and programming referred to in this law, the state is also empowered to establish public service radio or television stations. Provisions of the law warn that "liabilities for performances, programs or expressions ... that are subject to criminal infractions shall be handled by a criminal judge ... subject to the Common Code of Criminal Procedure" – in other words, Ecuadorian broadcasters risk incarceration should their programming be deemed "criminal." Issues such as age-appropriate content and the rebroadcasting of content by other networks on copyright grounds are also included in the law. Article 3 of the act states that radio and television stations that operate without proper authorization will be "closed down and their equipment seized immediately," and that those responsible for unauthorized broadcasting can face two to four years in prison.⁴⁸ The law also outlines other grounds for shutting down media outlets, such as repeated technical problems for broadcast media that have already been assessed to two fines or suspensions. Article 44 of the law established the National Radio and Television Broadcasting Council (CONARTEL) and gave this body the power to "regulate and control the artistic, cultural, and moral standards of performances and programs" that are broadcasted on radio or television. In the absence of specific regulations, the law gives CONARTEL the power to apply those contained in the codes of ethics of the Ecuadorian Association of Radio and Television and the Association of Television Channels of Ecuador.⁴⁹ Currently, as with many other Latin American countries, every Ecuadorian broadcaster (except cable stations) is required by law to air official announcements called cadenas, which can emanate from any ministry, as well as to provide space for official programming for up to one hour each day.

The Broadcasting Law does not contain provisions that would guard against concentration of ownership or extensive cross-ownership. It also discriminates against community radio in many ways, making it extremely difficult to operate such a station. For example, due to a stipulation in the law, frequencies cannot be given to community radio stations; they can only be given to "community service" organizations.⁵⁰ Community radio stations are also required to receive a favorable report by the Joint Chiefs of Staff of the Armed Forces in order to ensure that the station is not hindering national security, and these stations must be for public service, meaning that they cannot have advertising devoted to "social, educational, or cultural purposes." Community radio stations must also complete additional requirements that go beyond what is expected of a commercial station.

The administrative oversight of the broadcast media was restructured in 2009 to give the executive branch more control over the regulatory process. In August, an executive order created three state agencies that would control telecommunications: the National Telecommunications Council (CONATEL), the National Telecommunications Secretariat (SENATEL), and the Superintendency of Telecommunications (SUPERTEL).⁵¹ This order also combined CONATEL and the aforementioned CONARTEL, and put CONATEL under the control of the newly created Ministry of Telecommunications, whose head is appointed directly by the president.

The statutory CONATEL agency now regulates the broadcast media, formulating the state's telecommunications policy, approving the plan and use of the radio frequencies, and collecting the revenues from the use of such frequencies, among other duties. It also provides the necessary licenses and makes decisions regarding suspensions or withdrawals, as was the case on four occasions in 2010.⁵² Although Article 120 says that members of all three of these bodies should have "no direct or indirect employment relationship with anyone holding an authorization to provide telecommunications services," CONATEL is considered to be highly dependent on the government, with four of six members answering directly to the president.⁵³ CONATEL's members include a chair, who serves as a representative of the president, the head of the Joint Chiefs of Staff of the Armed Forces, the secretary general of the National Development Council, the national telecommunications secretary, the superintendent of telecommunications, a representative from the chambers of production, and a legal representative. There is no provision for mechanisms that would enable accountability for decision-making or for participation of citizens and civil society groups in the formulation of the regulatory structure.

SENATEL, which reports directly to the president, is CONATEL's executive arm. Its duties include legally representing CONATEL, enforcing its resolutions, drafting radio frequency contracts with broadcasters, and providing the necessary authorization for the interconnection on the country's networks. After CONARTEL merged with CONATEL, the "rights and obligations of CONARTEL" were assumed by SENATEL.⁵⁴ The leader of SENATEL is appointed by the president for a four-year term. The Superintendency of Telecommunications functions as the eyes and ears of SENATEL by controlling and monitoring the use of the radio frequencies, supervising the fulfillment of the contracts with broadcasters, and judging those who violate those contracts and applying corrective action, among other responsibilities. These actions can include withdrawing or denying licenses.

Press freedom in Ecuador was further threatened by the introduction in 2009 of the Organic Law of Communication, Freedom of Expression, and Access to Public Information – known as the Communications Bill – a compendium of laws and regulations that would threaten the viability of independent media.⁵⁵ The bill, which is being debated in congress and is already known as a "gag law," would introduce prior censorship by the state; an even stricter mandatory licensing of journalists; the obligatory registration of all outlets with a new statutory Communication and Information Council; and the editorial control of the media by such a council. It could also lead to the deterioration of the safeguards that guarantee the anonymity of sources. The Organization of American States' special rapporteur for freedom of expression, Catalina Botero, sent a letter to the Ecuadorian National Assembly with a list of recommendations, in an extraordinary attempt to reduce the severity of a bill that is likely to become the law of the land. Botero's recommendations to lawmakers included: create a set of media obligations according to the provisions of the American Convention on Human Rights; eliminate provisions mandating the registering of all media outlets with a state entity and the licensing of journalists; establish the complete political independence of the proposed Communication and Information Council; remove a provision mandating that the council monitor ethical conduct by the media; structure the right of reply according to the provisions of the American Convention on Human Rights; and eliminate provisions for prior censorship.

Impact of Regulation on Media Freedom

With a range of codes, statues, and laws at their disposal, public officials and regulators, with the blessing of Correa, have increasingly used the regulatory framework as a key method of restricting media freedom, with an uptick noted in 2010. In addition, the agencies regulating the media – such as CONATEL and FENAPE – have been influenced by the government's hostility toward the media and have let politics influence their decisions. Though FENAPE could be used to restrict media freedom, in practice FENAPE does not play a role in the regulation or self-regulation of the media or of journalists, as it is not a public institution. CONATEL has a mechanism that regulates complaints on its website, but it allows for only two types of complaints: complaints about the telephone operator and complaints about media content. Also, the functionality of the website appears to be disabled.⁵⁶

The distribution of broadcast licenses has been noted as an area of concern, particularly in regard to contraventions of existing laws pertaining to conflict of interest. Also, current legislation does not set a clear and fair procedure for access to radio and television frequencies. The Radio and Television Frequency Audit Commission, in a 2009 report, found several ways CONARTEL had illegally distributed radio and television frequencies. From 2003-08, nine business groups were granted 134 frequencies. The report also alleged that Jorge Yunda, the president of CONARTEL and the owner of several radio broadcasting licenses, was in violation of Article 232 of the constitution, which "prohibits media owners from being part of the body that regulates the media."⁵⁷

In Ecuador, the denial of licenses and the closure of media outlets have in recent years been the key methods employed to constrain the freedom of independent media. In terms of regulatory harassment, CONATEL has played the crucial role in silencing or intimidating stations or networks that have been critical of public officials, despite the fact that, as chartered by the Special Law of Telecommunications, it is not empowered to exercise a censoring role. This trend, that started shortly after Correa took office in 2007 worsened in 2009, when, according to local advocacy group Fundamedios, at least five media outlets were shut down by government regulators.⁵⁸

There have been several recent cases of government regulators trying to or successfully shutting down media outlets in Ecuador. In August 2009, Correa attempted to shut down independent television network Teleamazonas because of the station's broadcast of an opposition Socialist Party legislator who was talking about concerns regarding the country's constitution.⁵⁹ Correa claimed that the recording violated the Broadcasting Law. In September of that year, Correa requested that the network be given a 90-day suspension. In December, Teleamazonas was suspended for three days on the charge of reporting false information. In March 2010, an administrative court ruled in favor of Teleamazonas in a case that could have cost it the renewal of its license.⁶⁰ Showing his contempt for the fundamental democratic concept of separation of powers, Correa, on his weekly Saturday television show, called the decision "an outrage." Then, CONATEL Chairman Jorge Glas chimed in by pressuring the magistrates to appeal their decision. Weeks earlier, Jorge Ortiz, anchor of two Teleamazonas political shows, had resigned because of "government pressure," according to Fundamedios.⁶¹

Radio station La Voz de la Esmeralda Oriental Canela, known for its criticism of local officials, was not as fortunate as Teleamazonas. It was finally shut down in April 2011 after CONATEL denied the renewal of its license based on "bogus administrative violations," as termed by the Committee to Protect Journalists.⁶² The shutdown came after months of struggle to maintain the station. In September 2010, CONATEL had refused to renew its broadcasting license, and in December, SUPERTEL was ordered to shut down the station.⁶³ Station owner Wilson Cabrera told Fundamedios that the refusal was triggered by pressure applied by a local legislator unhappy with the station's coverage of his political performance.⁶⁴ International and national press freedom organizations have denounced the closure of media outlets and the attempt to shut down others as politically motivated and the result of a climate of permanent confrontation between public officials and the news media.

Perhaps the most notorious incident of an official attempt to regulate media content took place in the wake of the September 30, 2010 attempted coup against Correa by police officers unhappy with a reduction in their salaries and benefits. The government declared a state of emergency and arbitrarily ordered all television and radio stations to broadcast the signal of the official state channel, Ecuador TV. The virtual seizure of the country's broadcast media assured that Ecuadorians received only Correa's version of what transpired during that historic event. Additional efforts by officials to interfere with broadcasts include the case of Radio Mega, in which the station's owner suspended its news programming in May 2010 following a telephone call from an unidentified CONATEL official who also suggested that the station hand over its recordings for examination.⁶⁵ Officials also overtly interfered with a program hosted by María Josefa Coronel on Teleamazonas TV in January 2011. Coronel's program was replaced by an official announcement in which a government presenter and three other people criticized the journalist and her alleged antigovernment bias.⁶⁶

Self-regulatory bodies or frameworks for both print and broadcast media outlets are underdeveloped and weak. There are no laws in Ecuador that guarantee editorial independence for the public media, and these media outlets are often structurally and financially dependent on the executive branch. Individual print outlets often have a code of conduct, though very few have an ombudsman, and these codes are not always well known or utilized by employees. In addition, there is little public awareness of them. A vast majority of individual radio and television stations have mechanisms to report ethics or content complaints, although it is unclear how often these are utilized.⁶⁷ There is no industry-wide complaints body for print media. Broadcasters have their own associations, the Ecuadorian Association of Radio and Television and the Association of Television Channels of Ecuador, which have issued their own codes of ethics. These codes include "provisions against misleading advertising."⁶⁸ There have been no reported recent cases of either one of these entities enforcing their ethics regulations.

Conclusion and Recommendations

Ecuador's news media regulatory framework, influenced by political pressure from Correa's government along with a complex set of laws and statutes, has compromised the true essence of a free and independent press and its role in a democratic society. CONATEL and the regulating bodies under its hierarchy, SENATEL and SUPERTEL, are chartered to function as apolitical, impartial entities, but their membership and reporting structure places them firmly under the control of the executive. Independent networks and stations such as Teleamazonas TV, Radio La Voz de la Esmeralda Oriental Canela, and the rest of the country's broadcasting system during the September 30 coup attempt have experienced firsthand what can happen to a media outlet that is critical of the actions of the Correa administration or other public officials.

This restrictive media environment must be transformed to better allow for freedom of expression in Ecuador, which can be achieved by amending outdated laws such as the Radio and Television Broadcasting Law and its 1995 amendments. In this light, it is vital that the most restrictive provisions in the proposed Communication Bill (intended to replace this outdated legislation) – particularly concerning licensing for both journalists and media outlets, the independence of the regulatory body, and proposed controls over content – be either softened or eliminated. The media environment in Ecuador could be further improved by better publicizing in-house ethical guidelines, as well as developing industry-wide independent self-regulatory bodies for both print and broadcast media (such as a press or media council) with mechanisms to handle complaints fairly.

Overall, the regulatory climate in Ecuador would be improved if public officials, especially within the Correa administration, acknowledge that a free and independent media play a fundamental role in the development of a democratic society and refrain from politicized actions designed to restrict media outlets' freedom to operate. Periodic confrontation between the media and a public bureaucracy is inevitable. The media's role is to keep the public informed, whereas that of a bureaucracy to keep the public trust. This tug-of-war is not only natural but also healthy for good governance and transparency.

37 Local media freedom watchdog group Fundamedios recorded 22 attacks on the press (including physical and judicial cases) in 2008. In 2010, that number skyrocketed to 150, including 4 assassinations or disappearances, 21 cases of physical aggression, 1 kidnapping and 21 cases of direct intimidation. Fundamedios, "Fundamedios Annual Report Ecuador 2010," accessed at: http://www.fundamedios.org/home/contenidos.php?id=215&identificaArticulo=996

38 El Universo, "Titulo I, Elementos Constitutivos Del Estado," 24 July 2008, accessed at: http://www.eluniverso.com/2008/07/24/1212/1217/3372B66B41C14CE9A9168E8C913A8F2E.html

39 Inter-American Press Association (IAPA), "Freedom of the Press and the Law: Laws That Affect Journalism in the Americas," Chapultepec Collection, 1999, p.258.

40 IAPA, "Freedom of the Press and the Law," p.262.

41 IAPA, "Freedom of the Press and the Law," p.268, and World Press Freedom Committee, "Insult Laws: What are they? Why are they bad?," accessed at: http://www.wpfc.org/index.php?q=node/39

42 El Universo, "Titulo I, Elementos Constitutivos Del Estado."

43 Inter American Press Association, "Press Laws Database," 1999, accessed at: http://www.sipiapa.org/projects/laws-ecu17.cfm

44 IAPA, "Freedom of the Press and the Law," p.256.

45 IAPA, "Freedom of the Press and the Law," p.260.

46 IAPA, "Freedom of the Press and the Law," p.256.

47 IAPA, "Freedom of the Press and the Law," p.257-8.

48 UNESCO, Assessment of Media Development in Ecuador-2011 (MDI Ecuador), 2011, p.61, accessed at: http://unesdoc.unesco.org/images/0019/001925/192563e.pdf

49 IAPA, "Freedom of the Press and the Law," p.258.

50 MDI Ecuador, p.47.

51 MDI Ecuador, p.40.

52 IAPA, "Freedom of the Press and the Law," p.258. See also Fundamedios, "CONATEL determines that radio station critical of the government should be shut down," 29 December 2010, accessed at: http://www.ifex.org/ecuador/2010/12/29/radio_station_ordered_closed/

53 MDI Ecuador, p.40.

54 MDI Ecuador, p.40.

55 IAPA, "IAPA concerned at press freedom restrictions in proposed communications law," 21 October 2009, accessed at: http://www.ifex.org/ecuador/2009/10/21/communications_law/

56 MDI Ecuador, p.107.

57 World Association of Community Radio Broadcasters, "Investigation reveals irregularities in the granting of broadcasting frequencies," 9 January 2009, accessed at: http://ifex.org/ecuador/2009/01/09/investigation_reveals_irregularities/

58 Fundamedios, "La Palabra Rota: Seis Investigaciones sobre Periodismo Ecuatoriano," p.112.

59 Instituto Prensa y Sociedad (IPYS), "President calls for television station's definitive closure," 17 September 2009, accessed at: http://ifex.org/ecuador/2009/09/17/new_suit_against_teleamazonas/

60 Fundamedios, "Annual Report Ecuador 2010."

61 Fundamedios, "Annual Report Ecuador 2010."

62 Committee to Protect Journalists, "Ecuadoran radio denied license renewal on bogus charges," 5 January 2011, accessed at: http://cpj.org/2011/01/ecuadoran-radio-denied-license-renewal-on-bogus-al.php

63 Fundamedios, "Amazon based radio station closed by police," 3 April 2011, accessed at: http://ifex.org/ecuador/2011/04/07/la_esmeralda_closed/

64 Fundamedios, "Annual Report Ecuador 2010."

65 IPYS, "Radio program suspended," 3 June 2010, accessed at: http://ifex.org/ecuador/2010/06/04/programme_suspended/

66 Fundamedios, "Journalist's program interrupted by official telecast," 28 January 2011, accessed at: http://ifex.org/ecuador/2011/01/28/coronel_interrupted/

67 MDI Ecuador, p.102-3.

68 MDI Ecuador, p.88.