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Preliminary Observations by the UN Special Rapporteur on freedom of expression following his visit to Ecuador, 5 - 11 October 2018

I. Introduction

 For ten years, the previous Government of Ecuador stigmatized and persecuted journalists, undermined independent civil society organizations, and limited access to information, treating the freedom of expression as a privilege rather than an individual right guaranteed by the Constitution and international human rights law. However, in a sharp and welcomed turnaround, for the past year the Government has promised change. It is a commitment to which activists, lawyers, journalists and others in civil society seem determined to hold the Government accountable. In his remarks before the United Nations General Assembly in September, President Lenín Moreno emphasized that rights can only be guaranteed within the framework of solid institutions, with broad freedom of expression and alternation in power, which are fundamental elements of solid democracies.

The Government and the people of Ecuador have a lot of work to do to meet these important commitments. Some of that work involves legal change, and in that respect, I associate myself with the recommendations made in the preliminary report issued by Mr. Edison Lanza, the Special Rapporteur on freedom of expression for the Inter-American Commission on Human Rights, who visited Ecuador in August. In other respects it is not merely law that is required but national commitments to ensuring every individual’s right to expression: a broad commitment to implementation at every level of government, a cultural shift inside and outside public institutions in thinking about open government and citizen participation, and a major effort to destigmatize and promote independent media, the profession of journalism, and community and public media development.

Freedoms of opinion and expression, as noted by the Human Rights Committee, “constitute the foundation stone for every free and democratic society.” They promote individual development and government accountability, community protection and cultural exploration. They enable the kind of innovation essential to sustainable economic development. These are not privileges granted by government but individual rights guaranteed by Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Ecuador is a party. Article 19 guarantees everyone the rights to maintain an opinion without interference and to seek, receive and impart information and ideas of all kinds, regardless of frontiers and through any medium. The Constitution of Ecuador recognizes these foundational purposes by protecting the “right to voice one’s opinion and express one’s thinking freely and in all of its forms and manifestations” (Article 66.6). To be sure, the Government of Ecuador, like all States, has the authority to impose limited restrictions on expression (but not opinion), so long as they are provided by law and be necessary and proportionate to protect the rights or reputations of others, national security or public order, or public health and morals. It is also expected under Article 20 of the ICCPR to prohibit “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. Still, it is fundamentally important that the Government ensure that any restrictions on freedom of expression comply with these international standards by demonstrating in each case that restrictions are necessary and proportionate to achieve legitimate objectives. 

The preliminary observations below identify the thematic priorities that I believe are critical to achieving the Government’s freedom of expression objectives. By the spring of 2019, I will present a detailed report to the Human Rights Council. I look forward to working with the Government and the people of Ecuador on these issues of critical importance to the future of democratic life in the country.

II.  Elimination of restrictions on freedom of opinion and expression

Government officials with whom I spoke appear to recognize that several provisions of Ecuadorian law are inconsistent with the freedom of expression as guaranteed under international human rights law. Even the Constitution has concerning elements, such as Article 66.7’s provision enabling “persons wronged by information broadcast by the media, without evidence or based on inaccurate facts, to immediate, mandatory and free corresponding correction, reply or response, in the same broadcasting slot or time.” This broadly worded provision imposes an unnecessary burden on journalists, whom I have learned are often deterred from reporting by the operation of this rule and related implementing legislation.

The Ley Orgánica de Comunicación (LOC), the subject of ongoing discussions in Government and the National Assembly, contains several provisions that are inconsistent with international human rights law. In the course of its current review of the LOC, I strongly encourage the National Assembly to repeal, among other provisions, Article 18, which imposes a kind of reverse censorship that imposes government messages on the media; Article 22, which imposes the ambiguous and standardless requirement that all information disseminated by media be “verified, proven, accurate, and contextualized”; Article 26, with its innovative and problematic “media lynching”; and Article 74, which enables the Government to order media outlets to broadcast messages and reports “of general interest” by the President and the executive branch, free of charge.

Other significant interferences with freedom of expression may be found in the Comprehensive Organic Penal Code (COIP), which was approved in 2014. I am especially concerned with Articles 182 and 396, which allow criminal sanctions against expressions targeting another’s honor and good name. Article 182 penalizes slander, defined as the conduct of someone “who, by any means, makes a false accusation of one crime against another,” with a penalty ranging from six months to two years imprisonment. Article 396(1) sanctions a “person who, by any means, professes expressions in discredit or dishonor against another,” with imprisonment of fifteen to thirty days. Other similar problematic offenses exist in COIP, such as Articles 307 and 322, which provide penalties of five to seven years imprisonment for anyone who disseminates false information that results in “economic” or “financial panic,” both vaguely-defined in the code. Provisions such as these are bound to have a chilling effect on those commenting on the economy or financial affairs, such as journalists, media outlets, and academics.

I identify these provisions not as an exhaustive evaluation but to highlight the range of ways that existing law deters expression and reporting, damaging not only to journalists and others but also limiting the amount of information the public can receive. These provisions are vague and, according to information I have received, they have permitted abusive prosecution of media, journalists, and individual citizens, for defamation against public officials, undermining the ways in which free expression serves to hold public officials accountable. I recommend the decriminalization of these types of offences consistent with international human rights law.

The LOC also created SUPERCOM (Articles 55-59), a regulatory body responsible for monitoring media content and ensuring compliance with the LOC. Under the previous administration, SUPERCOM punished media outlets and individual journalists with fines, forced apologies and “corrections,” and prosecutions. Its existence and role undermined freedom of expression and I support the National Assembly’s apparent inclination to eliminate it. At the same time, I would encourage Government and legislative bodies to consider, in consultation with the media and civil society, self- and multi-stakeholder regulatory mechanisms to improve journalistic ethics and give individuals opportunities to raise grievances in a public but non-penal forum.

As the National Assembly carries out its review, I strongly encourage its Members and the Government to evaluate whether each provision meets the standards found in Article 19 of the ICCPR. Such evaluation, publicly noted, would reinforce Ecuador’s move toward ensuring that it builds a future that protects and promotes freedom of expression.

III. Promotion of public interest media: community radio and public broadcasting

On the surface, Ecuador appears to robustly protect community and public media. The Constitution guarantees plurality and diversity in communication (Article 17), equitable distribution of frequencies (Article 16), promotion of expression for indigenous groups (Article 57), and protections against discrimination (Article 11.2). LOC Article 86 echoes the Constitutional guarantee, calling for plurality and diversity of community media. The LOC also seeks to ensure that community radio stations have access to frequencies. Article 106 established the equitable distribution of radio frequencies, with 33% going to public media, 33% to private media, and 34% to community media. All of this would be outstanding if it meant what it seems to say. However, the truth and the practice are different, and the Government -- which has recognized this concern -- should take very significant steps to guarantee in practice what the law suggests is obligatory.

Beginning with community radio, it appears that the 34% goal has not been reached, and community groups believe that religious institutions have taken advantage of a loose definition of community media to acquire spectrum to which they are not entitled. The recent public contest for frequencies has also been criticized for being politicized, lacking transparency, and not adequately allowing community groups the opportunity to apply for frequencies, often because of prohibitive costs and inability to meet the narrow application criteria. I encourage a rethinking of how the law can promote community radio. In addition, given claims about the nature of the past allocation of spectrum, I encourage the Government not to enable automatic renewal of current frequencies, which would lock in the gains made by official and private actors during what many see as a flawed process.

Instead, the law should, in my view, guarantee genuine community media on a basis in which it does not have to compete with private actors according to the same criteria.  Community radio, to be successful, requires government financial and training support so that local initiatives can ensure rural and indigenous access to information and communication. Community radio offers all sorts of communities (indigenous, Afro-Ecuadorian, women, LGBTI, and so forth) access to information that they would not otherwise obtain, and conversely, allows historically discriminated people to have a voice and to transmit important information affecting their communities. I understand, and welcome, that the current draft of the revised LOC will encourage community radio by creating funds to support the sector while still promoting the independence and autonomy of indigenous communities.

I share the view that the Government should remove the 33% quota for public media altogether and instead begin the process of developing genuine public service broadcasting. A diverse and plural media system should include public media with sufficient economic and human resources. Public service media are non-profit public institutions with a public purpose: non-governmental or official, with editorial independence and adequate protection against arbitrary interference by governments and companies. Public service media must be accessible to all and represent the views of a wide spectrum of political and social interests, including vulnerable groups. I strongly encourage its development, leading ultimately to an independent public broadcaster accessible to all people in Ecuador.

IV.  Promote independent journalism and the safety of journalists

Democratic societies are dependent upon the access individuals have to diverse sources of news and opinion. And yet, I heard from a number of sources very serious concerns about the pressures put on journalists during the Correa administration and the ongoing need for improvement in the atmosphere for independent journalism. The LOC has led to much self-censorship and, according to some, a decrease in investigative reporting. But the law is not the only problem. The Government of Ecuador must embrace the fundamental role played by a free press in democratic society, and it should do so at every level -- rhetorical, policy, institutional, and legal. I heard this kind of commitment from the President and other senior officials during my visit, and to make it concrete,  I recommend the following:

1) High level promotion of the role of journalism and de-stigmatization of journalism: To correct the lingering culture in which journalism is devalued, the Government should promote journalism and the purposes of a free press in democratic society. Journalists must be able to carry out their work free from undue influence by governmental and other pressures, and must have the ability to adequately protect their sources. In order to ensure high standards of reporting, the Government should encourage media training in secondary education and in the universities, build robust media literacy, and foster an environment of respect for journalistic work among the population. I would also add one critical point raised by a number of journalists and civil society activists: the Government -- together with media outlet owners -- should lead a comprehensive effort to improve standards of living and social protections for those in the profession.

2) Support for the Inter-institutional Committee for the Protection of Journalists: The murder of three Ecuadorian journalists in April -- Javier Ortega, Paúl Rivas, and Efraín Segarra -- drew stark attention to the deficiencies in the protocols in place to ensure journalist protection and access to information, especially by families, during crises such as kidnappings or disappearances. I support the creation of an Inter-institutional Committee for the Protection of Journalistic Work that would review and strengthen protections. This group, composed of members of the State, media, journalist organizations, families of victims, and civil society organizations, should be inclusive of key stakeholders. It should also take into account the specific risks faced by particularly vulnerable groups of journalists, including women journalists and community and indigenous media workers.

The culture of acting with impunity against journalists must end. To begin with, those journalists who suffered attacks under the previous Government should have access to some form of reparation, whether moral or compensatory. Moving forward, the Government should help establish risk maps and accurately provide information regarding potential dangers journalists may face. The Government should also collect and publish data regarding incidents of violence against journalists. Journalists face threats of all kinds, including violent threats on social media. The Government must be vocal in denouncing threats and violence against journalists, and should investigate these incidents seriously and in a timely fashion.

3) Strengthened digital security and prohibition of digital surveillance of journalists and their sources: States have positive obligations to protect digital communications systems against cyber-attacks and to bolster digital safety and security for those who are at risk of such attacks, including journalists. I have heard reports of journalists being hacked. The Government should investigate these incidents thoroughly and impartially, respond appropriately, and take steps to ensure it does not continue. Journalists must also be able to use the tools necessary to keep their sources confidential, including encryption and online programs that ensure anonymity.

There have also been reports that the Government improperly surveilled journalists in the past. States should not conduct surveillance, including of a digital nature, against media outlets or journalists except under the most extreme circumstances where the principles of necessity and proportionality are met. Journalists who have been surveilled in the past should be alerted and any files pertaining to them should be made available to them at their request.

4) Development of journalistic code of ethics and self-regulatory mechanism: Not all of the responsibilities for the promotion of independent media rest on the Government. Journalists and media outlets also have a responsibility to ensure that they produce quality reporting rooted in principles of accuracy, independence, and fairness. Journalists must maintain professionalism in reporting by developing and adhering to a standardized code of ethics that they themselves develop and apply, including refraining from promoting discrimination. Journalists and other civil society members should create and maintain a media accountability and fact-checking system, to allow for self-regulation while building trust between the media and the public.

V.   Access to information held by public authorities

Despite the fact that the Constitution protects universal access to information (Article 18.2), I heard repeated stories from journalists and members of civil society organizations about the lack of access to government information. Several told me of the difficulties that they face in getting documents from government ministries and archives. They regularly are told that the information is subject to some kind of exception to the Constitutional guarantee. International human rights law protects the right of access to publicly held information, a right that is fundamental to promoting transparency and official accountability. Everyone, whether as journalists or members of the public, should be able to file information requests without providing reasons for their request, and the State should have limited bases not to disclose.

The Ley Orgánica de Transparencia y Acceso a la Información Pública (LOTAIP) should reinforce the guarantee of access to information. LOTAIP expressly states that “access to public information is a right of the people guaranteed by the State” (Article 1). LOTAIP specifically applies to the Government and defines public information as “any document in any format, which is in the possession of public institutions and legal persons referred to in this Law, contents, created or obtained by them, that are under their responsibility or have been produced with State resources” (Article 5). When information is made “reserved,” it should be done so explicitly and transparently, and in line with international human rights principles of legality, necessity, and proportionality in each case.

I am pleased to learn that an active transparency monitoring mechanism has been implemented this year, aiming toward compliance with the standards set forth in Article 7 of LOTAIP,  which requires the Government to provide information via website regarding government institutions, such as their financial information. I also welcome the announced resolution, championed by the Defensoria del Pueblo, that will be issuing general guidelines for dealing with requests for access to public information. It is important that the various government bodies have a standard process to respond to access to information requests in a manner which is compatible with international human rights. In tandem with such processes, government agencies should ensure full training of civil servants about the need to be responsive to requests for information.

I also understand that Ecuador does not protect whistleblowers as a matter of law or practice. The Government should protect any person who discloses information that he or she reasonably believes, at the time of disclosure, to be true and to constitute a threat or harm to a specified public interest, such as a violation of national or international law, abuse of authority, waste, fraud or harm to the environment, public health or public safety. I was encouraged to learn during my visit that the Government will be including whistleblower protections in a proposed anti-corruption law.

VI.  Protection of rights online

Ecuadorians who have access to the Internet generally do not face the blocking or filtering of content. Moreover, the Moreno administration appears to have firmly turned away from the previous administration’s efforts to restrict and punish online activity. The Government should reinforce the current apparent policy of avoiding using the Internet to attack critics by committing to at least two legal norms: (1) disabling official actors from using copyright law in attempts to limit the dissemination of government and other public information and reporting; and (2) limiting the requests to Internet companies for the takedown of content to the narrow restrictions available under Article 19(3) of the ICCPR.

There are also institutional issues that Ecuador will need to address in order to ensure a future of non-discrimination for content and content-providers, all of which is for the public’s benefit. Presently, for instance, the regulatory body responsible for Internet issues, ARCOTEL, is a subsidiary body of the Ministry of Telecommunications, with its directors appointed by the President. To ensure against claims of politicization, the government should reform the Telecommunications Law to ensure ARCOTEL’s independence, clarifying its position as an independent agency and ensuring multi-stakeholder roles in appointing its directors. There is also a distinct lack of clarity concerning the Government’s commitment to network neutrality, which is protected by law but also left uncertain by Article 64 of the Telecommunications Act, which enables various tariff plans by Internet service providers.

I understand that there is a proposal for a data protection law, that could further protect the rights to privacy and freedom of opinion and expression. Currently, the right to personal data protection is guaranteed by Article 66.19 of the Constitution. The new law on data protection should be consistent with international standards, and I look forward to reviewing a draft when it becomes available.

VII. Promotion and protection of civil society organizations

Ecuador has regulated civil society organisations according to executive decrees. Executive Decree 016 allowed for broad and problematic government power in the intervention and dissolution of civil society organizations. Several problems remain in a successor decree, particularly in regard to the definitions of when the government can dissolve an organization. Pending legislation currently before the National Assembly would remove the regulation of civil society organisations from the Executive branch of government, and would instead establish legal protections for civil society organisations and place them under the auspices of the Council for Citizen Participation.

A pending draft Law on Non-Profit Organizations would enact provisions regarding the creation and dissolution of civil society organizations, eliminating the kind of arbitrary government decision-making permitted by executive decree. Under this law, civil society organizations would not need the approval of the Executive or any other entity belonging to the executive branch of the government for their establishment, operation or dissolution. Additionally, civil society organization operations would be overseen by the Council for Citizen Participation and Social Control, also subject to pending legislation, which would have limited powers to declare the dissolution of a civil society organization. Civil society organizations also would not need to provide information about their operations to any entity in the executive branch.

VIII.    Background to the visit

At the invitation of the Government, I spent the week of 5 - 11 October in Ecuador in order to assess freedom of expression in the country. The visit has taken place as part of my mandate, by appointment of the UN Human Rights Council, to assess the Government’s protection and promotion of the right to freedom of expression under international human rights law.

I would like to thank the Government of Ecuador for inviting me to undertake this official mission, as well as for its cooperation in arranging official meetings. During my visit I met with President Lenín Moreno, Minister of Foreign Affairs José Valencia, Minister of Telecommunications Guillermo León Santacruz, acting Minister of Justice and Human Rights Paul Granda, the Secretary of Communication Andres Michelena, the Under Secretary of Citizen Security of the Ministry of Interior, the President of the National Court, the Prosecutor General, Attorney General, the acting Ombudsperson, the transitory Judiciary Council, the National Assembly,  the Commission of Collective Rights of the National Assembly, the Executive Director of the Regulation and Oversight Agency (ARCOTEL), and the President of the Council for Regulation and Development of Information and Communication (CORDICOM),  and the Council for Citizen Participation and Social Control, among others. 

I would also like to thank all the journalists, lawyers, academics, civil society representatives and members of the diplomatic community who met with me, providing detailed information about the situation in the country.