Restrictions against freedom of expression increased through constant verbal and media attacks of intimidation against those who think differently from the government: tough court sentences, three laws in effect, and two under discussion consolidate the idea that information is a public service and that, as such, its administration should usually be in public rather than private hands.
The closure of the El Universo and El Gran Hermano [Big Brother] cases reduced the tension in the area and left decisions in legislation that become part of case law, thus constituting a constant, serious threat to freedom of expression, journalism, and media companies.
This case law includes the fact that members of the board of directors of a company may be sentenced to three years of prison and payment of $40 million in compensation for the publication of an opinion piece written by a third party working at their outlet.
On March 27, President Rafael Correa announced that he would pardon the three sentenced in the El Universo case, and journalists Juan Carlos Calderón and Christian Zurita, authors of El Gran Hermano. These latter individuals had been sentenced to pay a million dollars each.
After President Rafael Correa, in his capacity as private accuser, dropped the lawsuit, the El Universo case was closed. Not so the matter of Gran Hermano and the sentences against the two journalists who wrote this book of investigative journalism, since, according to the judge, it was not sufficient just to “condone” the penalties, as President Correa asked, but rather it was necessary to drop them. For this reason, the case has not been closed.
The repudiation of these cases by the international press community and the issuance of injunctions by the Inter American Commission on Human Rights (IACHR) concerning the El Universo case confirmed the attention drawn by the red alert over the enormous deterioration of freedom of press in the country, both within the realm of the Inter American System of Human Rights and world-wide.
In February the IACHR accepted the request for several injunctions for the defendants in the cases and called for a hearing in Washington, D.C. on March 28. However, on March 29, Foreign Minister Ricardo Patiño went to Washington and called the IACHR an inquisitor, accusing it of going beyond its competence in issuing injunctions. That posture was reaffirmed on March 31 by Correa, who in his Saturday address no 265 deprecated the IACHR and warned that he would get back at them for the “barbarities that they had committed.”
The government had said that it could officially invite a delegation from the IACHR to the country to see the advances made in freedom of expression, but without giving a date for the visit.
On the other hand, on December 21, the Tenth Judge of Criminal Guarantees in Pichincha, Leonardo Tipán Valencia accepted the slander suit rought by Pedro Delgado, plresidehnt of the Central Bank and cousin of Rafael Correa Delgado, suing Jaime Mantilla Anderson, director of Hoy and vice president of the IAPA, to three years in prison and payment of a fine of $25. The same night that the decision was announced, Delgado said that he would drop the suit against Mantilla.
The attacks on journalists, media, and persons who criticize the regime continue through the use of public resources, among them the media outlets managed by the government. Correa blamed El Comercio for having provoked the assassination of former president Eloy Alfoy in 1912 and proposed changing the history books, something that finally never happened.
Journalism is carried out in an environment of political radicalization, where independent journalists remain in a dangerous situation when they are rejected by government followers who consider them to be of the opposition; while at the same time they are considered to be little committed by the opposition and are therefore rejected by them as well. This situation was seen in the march organized by the Confederation of Indigenous Nationalities of Ecuador and various opposition groups between March 8 and 22, in opposition to government policies involving water and mining, which produced new incidents among opponents, government supporters, the public press, and the independent press.
Three laws issued in recent years restrict freedom of expression:
The Organic Law on Citizen Participation defines information as a public service.
The Law on Regulation and Control of the Power of the Market provides that those who hold six per cent or more of shares in a national audio-visual media may not have shares of another business outside the area of communications.
The Code of Democracy concerning electoral processes that went into effect on February 4 includes various limits on the media, among them: The media may not publish information that generates sympathy or antipathy toward candidates, affecting in one way or another the votes that they may receive. At the deadline for this report, this provision is being studied by the Constitutional Court, after being challenged by groups of journalists. The media may only sell advertising space for the electoral campaigns to the National Electoral Board, which has a system of assigning budget on the basis of political parties, the media, and the population.
Five constitutional challenges were filed against article 203 of this law by four opposition political parties, the National Union of Journalists, Fundamedios, and the Association of Newspaper Editors of Ecuador. The argument is that it limits news coverage during periods of electoral campaigns.
On April 8 the General Prosecutor’s Office of the State asked the Constitutional Court to deny the challenges of constitutionality. The judge called upon the plaintiffs to present their arguments on April 24.
Two legislative bills are also being discussed that would have restrictive effects.
In the reform of the Penal Code, in spite of the disappearance of the word “contempt” as the prior government offered, sixteen articles remain that penalize libel, including that which may occur abroad. The bill proposes that libel against public servants carry greater penalties, which range up to three years in prison.
On the other hand, in the second week of April, with barely the minimum 63 votes required for passage, officialdom managed to pass a motion to discuss the draft of a Communications Law article by article, which means that a law will be passed that must be sent to the president where it will be edited by his veto under his vision of what communication is. After veto, the law goes back to the Assembly where, according to the Constitution, it can be rejected with only two thirds of the vote.
The government’s strategy may include getting from the Assembly a less restrictive law, then to allow the Executive to perfect his more restrictive view.
The Communications Law bill, which has 127 articles and 16 transitory provisions, establishes a Communication Council that will have, among others, the following responsibilities: to intervene in society and develop communication, to define and sanction discriminatory messages, to design and execute public communication policies, and to order the communications media to rectify, reply, or respond.
The future law also contemplates that the Communication Council be made up by a government majority. It divides the media into “generalist” and “thematic” groups. The former are obligated to disseminate informative, educational, and cultural content; the latter are not so obliged. It prohibits the media from refusing content, but in another article it requires them to assume the consequences of what they publish.
It also creates the definition of “national media.” For newspapers, it considers a daily paper to be a national medium if it sells a number of copies equivalent to 0.25% of the national population, that is, 35,000 copies. Audio-visual media are national when they have coverage of at least 30% of the national population. For example, a radio station that covers the entire province of Guayas would be considered national. Owners and executives of national media are prohibited from participating in businesses outside of communications.
The law creates the concept of “information of public relevance” with vague provisions and obligates newspapers to publish their circulations figures daily.
The bill orders that one third of frequencies be available to private companies, one third to communities, and one third to the State, although one of the threats is in the control or influence that politicians of each government may have over the community stations.
It adds a prohibition against any “discriminatory” message with vague and ambiguous provisions that information be objective, truthful, and timely; it obligates the media to disseminate their codes of ethics and it states that a medium will answer legally for its content if it is unable to demonstrate that it knows the identity of those who make comments on its websites.
The latest version of the bill indicates that it will not regulate information nor the opinions that appear on social networks.
The Law on Transparency and Access to Information is hardly respected by public servants.
In large part, the position of the government before the press is due to the vision that President Correa and other government leaders have for it. In one of his reports on activities, President Correa said: “I sincerely believe that communication is something just as serious as administering justice, hear me well, it is like administering justice. Imagine that private enterprise were in charge of administering justice. Would it take account of conflicts of interest? Well, that’s how communications are; they have a lot to do with justice; they absolve or condemn in the media. They must be dependable third parties and they are private businesses pursuing their interests. I believe that one of the great advances of civilization made by humanity will come when we are able to reach a point where private businesses dedicated to communication are the exception and not the rule, and the rule being community media, media with their ownership democratically obtained, with many participants, adequately controlled public media, and not those private businesses that can make and unmake, of a product that is not just a necktie (…), a fundamental asset for society. Communication, I insist, the task of communicating, I compare to that of administering justice.”
Chronology of the most important events:
On October 25, the Inter American Commission on Human Rights, in Washington, heard the complaints of a delegation of Ecuadoran journalists, among them the authors of the book El Gran Hermano, Juan Carlos Calderón and Christian Zurita; the leaders of Fundamedios, César Ricaurte and Mauricio Alarcón: the regional publisher of El Universo, Mónica Almeida; and the Executive Secretary of AEDEP, Diego Cornejo.
The journalists were basically complaining about the judgments that the president has brought forth, the fragility of a judicial system that does not offer guarantees, the constant attacks and stigmatization from the president, and the use of public funds to finance those attacks.
After the hearing, President Correa said that he would accept the recommendations of the IACHR so long as they are not wrong. He said that the doors to his country are open to receive a visit from the IACHR, but he announced that he would not invite them.
In early November, the government used nation television hook-ups several times, more than ten minutes each time, to denigrate those who attended the hearing of the IACHR. He called them representatives of large economic interests and said they were tied to supposed torturers from past regimes.
The journalists mentioned in the television hook-ups asked unsuccessfully for the right of reply guaranteed by the Constitution.
On November 8, the Eighth Court of Criminal Guarantees of Guayas accepted the lawsuit for non-slanderous libel against journalists Antonio Medrano, a correspondent for the newspapers El Universo and Super in the city of Babahoyo. Medrano had published a note about the complaints of users of the Provincial Council on River Transit, which at that time was directed by the plaintiff Aldo Loqui, over the presence of brokers and requests for bribes.
On November 9, it was found out that broadcaster Carlos Ignacio Cedeño Mendoza, from the city of Portoviejo, was sentenced to six months of prison for having slandered physician Melitón García on a radio program. According to the suit, Cedeño accused García of having taken beds from the public hospital of Portoviejo when he was director of that health institution.
On November 19, the president of the National Assembly, Fernando Cordero, warned citizen Betty Escobar through the Twitter social network that she should change her language or she would be sorry for her licentiousness. Escobar had called Cordero inept in a comment and accused him of being corrupt.
On November 21, the Electoral Court of Disputes rejected the suit brought by Doris Soliz as “subjective.” Soliz was then the coordinating minister of politics, and her suit was brought against the newspaper Hoy for a supposed electoral infraction. In May, Hoy had published some photographic montages to commemorate the Day of Freedom of Expression, when the country was under electoral silence. The government interpreted it as publicity against Question # 9 of the popular consultation.
On November 24, a court in the province of Pichincha convicted Monica Chuji, former secretary of communication of the government and former assembly member for the pro-government movement AP, to twelve months of prison and $100,000 in fines for libel against the secretary of the Prosecutor’s Office, Vinicio Alvarado. After the sentence, Alvarado announced he was pardoning Chuji and the judge closed the case file on December 7. On January 4, Chuji requested invalidation of the sentence and demanded that the government depenalize libel.
On November 24, the police arrested Javier Genovez Solano who, according to the minister of the interior, José Serrano, had threatened the president of the republic with death on the social network Twitter. He was released the next day, without being charged, after apologizing.
On November 30, the Twenty-Fourth Court of Criminal Guarantees of Guayas issued an arrest order and a call to trial against Victor Vizcaíno Luzuriaga, since he was not appearing periodically before the court as ordered as a condition of his release in May after being accused of offending the general prosecutor of the nation, Washington Pensántez, through his blog “Plegaria de un Pagano.” Vizcaíno’s attorney assured that the identity of his client has been stolen over the Internet.
On December 3, during a Saturday network hook-up, the president of the republic, Rafael Correa, threatened journalists and people responsible for communications media, by saying that he would send them to prison for twenty days if they disseminated false news reports. The information that brought about that reaction of the head of state has to do with the variations that the prices of imported products could suffer after the increase from two to five per cent on the flight of capital.
On December 12, the president of the Court of Electoral Disputes, Ximena Endara, rejected a complaint brought by several organizations close to the government against the magazine Vistazo for supposedly violating electoral silence by having published an editorial in which it asked for a NO vote on several questions of the popular consultation of 2011.
On December 17, President Correa tore up a copy of El Universo during his Saturday television hook-up and accused the press of “setting up a scandal over absolutely nothing.” Several newspapers had published a report that a personal assistant of the head of state had visited Prosecutor Antonio Galiardo that week, who was investigating the supposed “ideological falsity” of judge Juan Paredes, who was the one who signed the sentence against El Universo.
On December 28, the Second Section of Criminal Guarantees of the National Court of Justice denied the appeal on points of fact brought by Emilio Palacio, former opinion editor of El Universo, and with that left standing at the last level the sentence that ordered him to three years of prison and payment of compensation for, according to the courts, having slandered President Rafael Correa.
According to the network Fundamedios, throughout 2011 156 assaults were recorded against journalists, communications media, and citizens who were exercising their right of free expression. Of this total, 82 cases were originated by public servants and of these, 18.59% by the president of the republic.
On January 7, radio station Perla Orense, of the province of El Oro, was closed by the Superintendence of Telecommunications because it was not up to date in paying for its rights to the channel. Guillermo Serrano, legal advisor for the station, complained that the closure operation was carried out violently. As a result, several pieces of furniture and glass were destroyed. Serrano warned that it could be a matter of political retaliation for the stance of opposition to the regime taken by the station.
On February 16, judges of the criminal section of the National Court of Justice, after a fifteen-hour hearing, ratified the sentence to three years of prison and a fine of $40 million against three directors and the former opinion editor of the newspaper El Universo. This was the third and last level. The case was returned to the lower court for execution of the sentence.
At the end of January, in several sections of Quito graffitis appeared with phrases against the media and particularly accusatory ones against the newspaper El Comercio, which they tied to the murder of former president Eloy Alfaro, which took place in 1912. Sentences such as “Weapons of mass destruction: El Comercio, El Universo, Teleamazonas;” “We are reborn daily killing revolutions. F*** El Comercio;””If you buy El Comercio, you burn me again. F*** Eloy Alfaro;” “Bonfires of yesterday, slander today, ashes tomorrow. El Comercio.” “My slander feeds the Barbaric Bonfire. F*** El Comercio.”
On February 22, the channel Megavisión TV in the city of Quinindé, province of Esmeraldas, suffered the theft of several pieces of equipment, including transmission computers, switchers, converters, and video players. The station was off the air for five days.
On March 2, Minister of Foreign Affairs Ricardo Patiño left a live interview on Radio Democracia of Quito after journalist Gonzalo Rosero asked him about some statements made by pro-government assembly member María Augusta Calle on the finding of drugs in a diplomatic pouch in Italy. Patiño called Rosero “a liar” several times and said that he didn’t deserve for him to keep talking. The next day, the two of them, Patiño and Rosero, publically apologized for the incident.
On March 16, Javier Granados, owner of the weekly La Noticia, in the city of Vinces, was physically assaulted by a known athlete from that area who, after entering the printing plant, began to destroy part of the furnishings and to insult and hit the journalist whom he even tried to asphyxiate. Granados believes that the attitude of the assailant was motivated by the publication of some gossip in one part of the weekly.
On March 19 a correspondent from the state channel Ecuador TV announced that he had been assaulted and prevented from covering the indigenous march during its passage through the city of Ambato. He said that a person intercepted him and his cameraman and demanded that they leave the place because the state media had restricted coverage of the march.
On March 20 several journalists from private media tried to cover the signing of an agreement between the coordinating minister of policy and the Shluar community, but were prevented from doing so, since the organizers adduced that they were not accredited, this in spite of having receive respective invitations. Then government sympathizers assaulted them verbally, calling them liars and saying that they had sold out.
On March 20, a reporting team from the state newspaper El Telégrafo was prevented from covering a press conference given by the organizers of the indigenous march.
On March 23, the minister of the interior, José Serrano, warned the Teleamazonas network that he would bring a suit against it if it did not prove the information supposedly disseminated on its news program that the police had used tear gas on the indigenous march held the prior day in Quito. On that day the newspaper El Telégrafo, in hands of the state, published the information that uniformed police had used tear gas bombs against the demonstrators.
On March 27, The National Secretariat of Communications interrupted the program of journalist Gonzalo Rosero, of Radio Democracia, to counter comments that the journalist had made in previous programs. The government called them “utter lies.” At the end, the government message said that “information is a public interest asset and that it must be cared for with ethics and transparency; this is a contribution to make truth shine over everything else.”
On March 28, through an opinion column, Orlando Pérez, director and writer for the daily El Telegráfo, in hands of the state, revealed that he had received death threats via email for comments received after publishing a note titled “Cynthia, the mayor?” in reference to Cynthia Viteri, assembly member of the opposition movement Madera de Guerrero [Warrior’s Wood].