Ecuador's new Communications Law: Progress on access and spectrum allocation, but a reverse for freedom of expression
By AL for APCNews
MONTEVIDEO, Uruguay, 27 June 2013
Ecuador’s National Assembly approved the new Organic Law on Communications on Friday June 14. If the nation’s president sanctions the law within 30 days, it will mark the end of a four-year process that began when communication was enshrined as a right in the 2008 Constitution. APC and other civil society organisations have participated actively in this process. At APC we recognise positive aspects of the final version of the law, but we also voice our concern at new provisions that endanger fundamental principles in the APC Internet Rights Charter and the Internet Rights and Principles Charter. APC joins the expressions of concern from local civil society organisations as well as the international community.
APC regards the approval of a communications law in Ecuador as necessary and crucial, especially to ensure that commercial media, which have historically had a monopoly on information, are no longer the only voices heard in the country. We believe that state participation is vital to promote diversity and especially to include voices that have traditionally been excluded, such as persons in vulnerable situations.
Article 35 of the law establishes universal access to information and communication technologies as a right, stating that:
all persons have the right of access to, training for and using information and communication technologies to potentiate the enjoyment of their rights and their development opportunities.
This article clearly reflects the priorities of civil society participants in this legislative process; in fact, it coincides with one of the “Ten points for a democratic law in Ecuador,” a campaign launched in 2009 in which APC took part.
Allocation of the radio frequency spectrum is another innovative aspect of the law. Article 106 says:the radioelectric spectrum frequencies devoted to the operation of open signal radio and television stations shall be allocated in three equal parts, with 33% being reserved […] for the operation of public media outlets, 33% for the operation of private media outlets, and 34% for the operation of community media outlets.
Fair allocation of the spectrum was also part of the ten points campaign, and APC highlights the positive impact this article will have on the regulatory scenario of the country. However, we consider it necessary to add provisions that ensure the tripartite allocation is maintained when migration to digital broadcasting is completed. Digitalisation, in fact, constitutes a valuable opportunity to democratise communications, and the new law should ensure observance of the principle of public interest.
Causes for concern
Civil society has been involved in this legislative process from the outset, offering its point of view and campaigning for fundamental principles. While some aspects have been included in the text of the law, last minute changes were announced a few hours before its debate and approval in the National Assembly on June 14, on which there was no consultation whatsoever.
One of the changes that APC regards as most problematic is in article 20, which is about the ulterior responsibility of the media. The law says:
comments added below electronic publications on the websites of legally constituted media outlets shall be the personal responsibility of their authors…[The media outlets shall] generate mechanisms for the registration of personal data that permit their identification, such as name, electronic address, and identity documents… Media outlets shall only be able to reproduce messages from the social networks when the poster of such messages is duly identified; if the media fail to comply with this requirement, they shall bear the same responsibility established for the contents published on their web page that are not explicitly attributed to another person.
In its present form, the law explicitly attacks online anonymity, one of the fundamental elements of freedom of expression on the internet. The privacy of users is also compromised, as it is not stipulated how the media outlets are to manage the personal data they are required to collect.
Article 4, on personal contents on the internet, states that the law
does not regulate the information or opinions expressed by individuals on the internet. This provision does not exclude criminal or civil actions to which they may be liable as a result of offences against other laws committed on the internet.
APC views this as problematic, as the possibility is left open for another law to regulate and control the expression of opinions online. It also contradicts article 20 of the law, which clearly regulates personal expressions in the media. Nor is it clear what would happen with opinions and information expressed within an institutional framework.
Article 5 classifies as social media outlets
companies, public, private and community organisations, as well as persons in receipt of concessions of radio and television frequencies, that provide a public mass communication service using the tools of print media, radio, television, subscription audio and video, the contents of which can be generated or replicated by media outlets over the internet.
In the view of APC this definition is overly restrictive of electronic media. For instance, it is not clear if a collective blog for a non-governmental organisation, a wiki with open educational resources managed by a university, or a metablog that compiles articles from different sources, would or would not be part of the media outlets regulated by this law. This is not a trivial consideration, especially in view of the reservations about anonymity and privacy mentioned with regard to article 20 (but also relevant for articles 30, 42, 71, 88 and others).
Finally, article 10, which considers ethical regulations, highlights the importance of media outlets assuming “responsibility for the information and opinions they disseminate.” As seen above, article 10 does not define or include several online platforms that could be regarded as media outlets, so that opinions expressed by these means may eventually be subjected to the regulations in article 20, which forbids anonymity and stipulates that if the media outlets do not register details of their users, they must assume legal responsibility for what is expressed by third parties.