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Freedom of the press secured as Communication Law goes into effect with most of Lasso’s changes incorporated

Published on November 14, 2022

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Because of the failure of the National Assembly to vote on the issues, most of the observations from President Lasso’s partial veto were maintained.

The reforms of the Communication Law will come into force with most of the changes of the veto of President Guillermo Lasso. On November 11, 2022, Lasso sent the final text for publication in the Official Registry and its entry into force.

The reforms to the Organic Law of Communication were approved by the Assembly on July 21, 2022. Some changes were questioned because some of the modifications made the legislation have similarities with the Organic Law of Communication that was approved in 2013 and was known as a “gag law.”

Organizations that defend freedom of expression and journalists publicly and categorically rejected the approval of the law. They said that it was a setback for the free exercise of the right of expression and the press, a fundamental condition for a full democracy. The organizations asked the President to totally veto it.

On August 24th, President Guillermo Lasso issued a mixed partial veto of what was approved by the Assembly. It included 17 objections for unconstitutionality and 34 objections for inconvenience.

The Constitutional Court approved 12 of these 17 objections for unconstitutionality and the Assembly ratified 3 of the objections of inconvenience, related to the democratization of frequencies and community media. However, the Legislature did not rule on the rest of the objections within the 30-day deadline. So, these parts will enter into force with the changes made by the President. The decision of the Assembly agreed with the decision of the Court.

On November 11th, President Lasso held an event in which he showed the signed decree law that will be sent to the Official Registry to enter into force. In addition, in this event, Lasso threw a bundle of papers —which symbolized the “gag law”— into a red garbage can that had a sign that said, “garbage can of history.” Lasso said that “no one misses arbitrariness and totalitarianism” and that with the entry into force of the new law “our freedom of expression is protected.”

Objections for unconstitutionality

The President’s partial veto of August 2022 included 17 objections for unconstitutionality. He claimed that with those 17 points, the changes proposed by the Assembly went against what the Constitution of the Republic dictates.

Of those, the Constitutional Court —the highest body in constitutional matters in Ecuador— approved 12 of Lasso’s objections in a ruling on October 3, 2022.

The Constitutional Court:

  • Declared admissible the objections to articles 2, 3, 9, 10, 11, 12, 17, 35, 41, 43, 50 and 53.
  • Dismissed the objections against articles 4, 8, 15, 43, 46 and 52.

One of the Executive’s greatest concerns about the project presented —and which coincided with observations from civil society— was the proposal to remove the “opinion” as a communicational content.

On this, the Constitutional Court agreed that “the opinion is part of the right to freedom of expression and is constitutionally protected, since the Constitution recognizes and guarantees the right” to express an opinion. In other words, the Constitutional Court says that an opinion piece is part of the communicational content and withdrawing it, as proposed by the Assembly, goes against the Constitution.

Another concern of the Executive was the role of the Ombudsman in the proposal of the law of the National Assembly.

This is because the reform proposed, from article 72, a series of articles which referred to the “public servants of the Ombudsman’s Office who will carry out their functions with independence and autonomy.” They, among other things, could “carry out conciliation agreements between citizens and the media for claims.”

The decision of the Constitutional Court was clear. The ruling states that “this Court evidences that the design of the challenged rule grants employees of the Ombudsman the power to monitor and control the ethical duties and commitments of the media. Thus, there is no doubt that the norm creates a mechanism of state supervision and control over the media and the exercise of their activities….”

Objections for inconvenience

The partial veto presented to the Assembly by President Lasso on August 24, 2022, included 34 objections of inconvenience, which are the ones made when there are shortcomings, contradictions or, as its name indicates, inconveniences in the approved text by the Assembly.

Some of the most important were:

  1. Included the principles of voluntary regulation of the media that are governed by ethical standards and self-regulation and that “in no case by standards or regulations imposed by the State.”
  2. Eliminated the educational campaign on the rights of rectification and reply—which was included in the text approved by the Assembly—because it would be “clearly an abusive use of the coercive power of the State
  3. Clarified the ambiguities of several articles to avoid erroneous interpretations of the law.
  4. Specified several articles that it qualified as “broad” and “vague” so that the purpose of those points of the law could be understood.
  5. Eliminated articles that had inaccuracies in the definitions of concepts —such as violent or discriminatory content— and the functions of institutions —such as those of the Council for the Development and Promotion of Information and Communication.
  6. Deleted articles that had been modified or deleted in other objections to the partial veto.

What follows are President Lasso’s inconvenience objections.

Assembly ratification

The National Assembly acquiesced to the ruling of the Constitutional Court on the unconstitutional objections. However, it did not get enough votes to accept or ratify the vast majority of objections ‘due to inconvenience’ submitted by President Lasso.

The National Assembly only managed to ratify three of the articles of the reforms to the Organic Law of Communication. This part of the legislation referred to the object of the law, the democratization of frequencies and the “affirmative action” that community media should have. Those are, articles 1,24 and 44, respectively. As for the rest, they did not make any decision due to lack of votes.

In article 1, the Assembly ratified adding the de-concentration of frequencies to the object of the law. In addition, the protection of the right to freedom of expression and to “seek, receive and disseminate information and ideas of all kinds through the media” is mentioned.

The Assembly ratified article 24, which says that one of the objectives of the country’s Social Communication System is “to show the cases of concentration of frequencies.” In addition, it must promote the development of the technical capacities of community media.

The Legislature also ratified the affirmative action of this type of media. This part of the law establishes that “the State will implement the public policies that are necessary for the creation and strengthening of the ecosystem of community media, directed and managed by social organizations, communes, towns, nationalities, indigenous people, Afro-Ecuadorians, Montubios and migrants.” These groups, says the ratified article, “historically have been discriminated against because of their ethnicity, class, gender, age or situation of human mobility” and have lacked access to the media.

Since the Assembly did not obtain enough votes to approve or reject Lasso’s partial veto in the other articles, the final text of the law entered into force with the rest of the observations made by the President.

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