Written by Analía Lavin, Association for Progressive Communications.
Until recently, communications laws in many Latin American and Caribbean countries were grounded in an obsolete vision of communications media, and in many cases, they ignored, or addressed only superficially, the technological and social changes that our countries have experienced in the past few years. Against this background, communications law has become an increasing priority on government agendas, and countries such as Colombia, Brazil, Argentina, Uruguay, and Bolivia have proposed legislation addressing this situation. Recently, Ecuador added itself to this list; in June, the Assembly passed a new Organic Communications Law, and the President ratified it.
Hours after the bill’s passage, critical voices made themselves heard at the national and international levels. Their concerns center on, among other things, the inclusion of policies such as “media lynching” (which the law defines as the dissemination of information intended to smear the reputation of a person or institution), which imposes limits on corruption investigations and jeopardizes the dissemination of information of public interest; the institutional design that will create two bodies (the Superintendence of Information and Communication and the Council for the Regulation and Development of Information and Communication) chaired by an official from the Executive branch, which fails to provide guarantees for the independent operation of this power; and the classification of public media outlets as “official,” which weakens the possibility of developing a real plan for public, non-governmental media.
However, it bears mentioning that the law also grants citizens certain rights in order to protect them from abuses and the economic interests of media outlets, by providing them equality of opportunity and placing conditions on the access and use of communications media. In turn, the law establishes a complementary media environment that recognizes and intends to strengthen community media. As established by the new law, the management of the wireless spectrum will become tripartite, divided equally among the state, private organizations, and community organizations. Finally, the law seeks to limit the formation of monopolies and oligopolies (that is, the concentration of the means of communications in the hands of a few).
The criticisms of the law have come from the same civil society organizations that celebrated its positive aspects. Many of these organizations, which have campaigned for a democratic communications law in Ecuador for years, view portions of the law with concern, such as the threats to online anonymity. In effect, this section of the law establishes that media companies must collect personal information about users that post comments on their websites, and should they fail to do so, the site owners will have to assume complete responsibility for any opinions expressed on their sites.
As Alexander Amézquita, of the Ecuadorian organization International Center for Advanced Studies in Communications (CIESPAL), argues, comments on news websites constitute a privileged forum for debate. The loss of anonymity in this area, he points out, would affect constructive conversations. Amézquita is in agreement with Richard Stallman, whom Carlos Correa, the Ecuadorian activist, consulted regarding the law: “Without the option of communicating anonymously, many citizens would not dare to express their political opinions. They would fear reprisals from their bosses, their families, or from the government.” Pedro Sánchez, executive secretary of the Latin American Association for Radio Education (ALER), also condemned the new law’s implicit threats to online anonymity and the grave consequences they bear for Ecuadorians’ freedom of expression, and assessed the provision that stipulates these measures as “completely unnecessary.”
At the same time, international human rights organizations have aired their reservations. In an official communication, Frank La Rue, United Nations Special Rapporteur on the Right to Freedom of Opinion and Expression, indicated his concerns about the new law. La Rue made mention of “mechanisms of censorship” that the law establishes, specifically the creation of the Superintendence of Information and Communication, which he views as “clearly directed at limiting the liberty of reporters to report on current events, public policies, and government officials.” In effect, the law establishes that the Superintendence will be directed by an official appointed by the president, which will prevent it from functioning as an autonomous body that can guarantee objective policies.
La Rue also criticizes the requirement that journalists have a university degree in communications, which prevents “journalism from developing in a form that is truly independent and free” and obstructs the means by which all citizens can express themselves in a communications medium. He also referred to the absence of public input during the process of passing the law, which “contradicts the intentions that the government declared during the previous parliament, which recognized the necessity of getting public input.”
For its part, the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Court of Human Rights of the Organization of American States confirmed that, in the current legal framework, when considering the expressions made through any communication medium as a public service, “the State is assuming enormous powers to regulateeach person’s fundamental right to freely express him- or her- self in the medium that he or she chooses.”
In summary, although the law recognizes a right to communication; ensures the participation of voices that have traditionally been marginalized in communications media; and privileges a public-interest perspective; at the same time, the content regulation that can be inferred from the law, such as the fact that limitations on freedom of expression are assumed to be the rule rather than the exception, is problematic and threatens human rights principles that are recognized by international law. The civil society organizations that have been actively participating in the discussions on this topic since the constitutional reform of 2008 view the development of the implementation of this law as an opportunity to clarify ambiguities and correct problems. It is essential that there be mechanisms for participation and that the details of the implementation of the law be made public, so that different groups can contribute their points of view and advance toward a law that is democratic, consensus-based, and in compliance with the international standards that Ecuador has promised to uphold.
This post originally appeared on Digital Rights: Latin America & the Caribbean, which is a partnership between Fundação Getulio Vargas, Asociación por los Derechos Civiles, the Association for Progressive Communications, and ONG Derechos Digitales.