An antenna dish in Quito, Ecuador. (Photo: golo)

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On June 25, 2013, Ecuador’s new Organic Communications Law came into force, after more than four years of debates and delays. Attacked by the mainstream press, both nationally and across the hemisphere, as a “gag” on freedom of expression, this new law in fact reflects in essence the proposals developed over more than two decades by movements supporting the democratization of communications, guarantees for diversity and plurality, and the need to regulate the media in the public interest.

As this small Latin American country has come onto the global radar due to whistle-blower Edward Snowden’s application for political asylum, and is now under attack from the media cartels because of a supposed “double standard” regarding freedom of expression, it is worthwhile to clarify the scope and origins of this new law.

Following in the footsteps traced by Argentina’s Audiovisual Media Law, the Ecuadorian law, mandated by the 2008 Constitution that recognizes communication as a human right, goes further in that it covers communication in its multiple dimensions.

As expressed on the day of the parliamentary vote (June 14) by Mauro Andino, main proponent of the new law and National Assembly Member from the (governing) PAIS Movement, the spirit of this law both recognizes “the enormous value and the importance of freedom of expression formulated in international instruments of human rights,” while it also adds to this “a series of opportunities and services in order for that freedom to really exist for everyone, so that it ceases to be a privilege enjoyed only by those better situated in our society.”

Communications, a Public Service

One of the central elements of the new law is the definition of social communication as a public service (i.e., similar to health or education) that must be provided with responsibility and quality of content, irrespective of whether the media outlet is public or private. Although this might appear obvious, given that information is a crucial aspect of democracy, right-wing opposition parliamentarians have nonetheless declared this clause as one of the first they hope to challenge in the Constitutional Court.

The law prohibits prior censorship in the press while at the same time emphasizing ultimate media liability for the content they publish (in compliance with international norms). In the interest of the universal principles of plurality and diversity, it establishes the redistribution of radio frequencies, with 33% for private media, 33% for public media and 34% for community media (to be applied gradually; at present 85% of such media are in private hands), and the elimination of monopolies in audiovisual media (with no more than one main radio station frequency concession in AM, one in FM and one in television to any one natural person or legal entity).

Other articles of the law encourage national cultural production, such as the obligation for 60% of daily broadcasting (in time slots apt for the broader public) to consist of nationally produced content, 10% of which must be from independent producers, while musical programs must include a minimum quota of 50% music produced, composed or performed in Ecuador. In countries that apply similar measures, such as Colombia, they have provided an enormous stimulus for cultural industries and artists.

Most of these proposals were initially put forward not by the government of Rafael Correa or the PAIS movement but by communications organizations and networks and social movements that for years have been fighting for the democratization of communications and recognition of the right to communicate as a universal human right. (1) The fact that the governing bodies finally came to recognize the legitimacy of these demands represents a major achievement for these movements.

Protecting Privacy and Media Workers’ Rights

The Washington Post in its criticism of “double standards” in Ecuador points out that “Mr. Snowden should be particularly interested in Section 30 of the law, which bans the ‘free circulation, especially by means of the communications media’ of information ‘protected under a reserve clause established by law'” – establishing fines as sanctions. While such clauses are standard legislation, the Post fails to mention that the clause 31 guarantees the protection of personal communications and their inviolability and secrecy, and the prohibition to record or register them, without the correspondents’ consent or a court order. This is precisely the human right that the US has systematically violated.

The law defends the rights of press workers and their employment security; moreover, it stipulates that the hiring of workers in media of national scope should conform to “criteria of equity and equality between men and women, intercultural representativeness, equality of opportunity for disabled persons and intergenerational participation.”

One innovation of the law is the obligation for private advertisers to allocate at least 10% of their annual advertising budget to local or regional media outlets, as a guarantee for media with a smaller broadcast range or lower print run, and those in rural areas, to share in advertising income.

Another is the prohibition of “media lynching,” understood as “the dissemination of information that is expressly and recurrently designed to destroy the reputation of a natural person or legal entity or to impinge on their public credibility.”

An aspect that is only marginally mentioned in the new legislation is that of digital frequencies – which have a great democratizing potential – although it does contemplate the need for an “equitable distribution of frequencies and signals made available through the digitalization of radio and television systems.” However, the notion that this is largely a “technical” issue prevails, and therefore it has been left for the Telecommunications Law – in preparation – to deal with in detail.

Among the most polemical issues is the institutional framework. The new legal body creates a Council of Regulation and Development of Information and Communication, as a regulatory body; a Superintendence of Information and Communication, with powers of sanction; and a citizen Consultative Council, whose role is not yet clear and whose decisions are not binding.

Opposition groups predict the executive branch will wield “excessive power” within this structure, although, in fact, it is no more concentrated and has, in some aspects, fewer powers than under the previous law, adopted under the 1970s dictatorship (which, for example, empowered the government to close down a media outlet).

The fact is that under previous governments the mainstream media were used to creating their own rules and were rarely brought to answer for their practices or abuses. With a government that has resolved to bring order into this sector, new conflicts are likely to arise with the application of the law; and, predictably, these will be decried throughout the hemisphere as attacks on freedom of expression. When these outcries are heard, it would be worthwhile to seek out both sides of the story, which is not precisely what is usually to be found in the mainstream media when their interests are at stake.

(1) See, for example: “Ecuador: Propuesta para Democratizar la Comunicación,” Foro Ecuatoriano de la Comunicación, July 2009, and “Ecuador: 7 compromisos para hacer realidad el derecho a la comunicación,” Campaña ¡Radios Comunitarias YA!