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  Number 387 | Octubre 2013
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Latin America

The good, the bad and the ugly of Ecuador’s new communication law

Communication has increasingly more political and economic weight globally. One of Latin America’s most debated and controversial new laws regulating the right to free speech and opinion was passed this year in Ecuador. What is the good, the bad and the ugly of this law? Weighing it up is someone who actively participated in the process resulting in this law.

José Ignacio López Vigil

Who does the radio spectrum, the part of the electromagnetic spectrum carrying radio and television signals, belong to? Who owns the frequencies allocated to telecommunications operators to use these wavelengths? The usual answer is the State. And many telecommunication laws currently in force in Latin America name the State as the official owner of the spectrum, making it comparable to national territory or the subsoil.

A common heritage

The radio spectrum belongs to neither States nor individuals. The International Telecommunication Union (ITU), the United Nations’ regulatory body for the electromagnetic spectrum, clearly explains in the 1992 Torremolinos Treaty and article 33 of the International Telecommunications Agreement, later adjusted in a meeting in Nairobi, that these frequencies are a collective good, the common heritage of humanity. It’s a scarce heritage and, for this reason, regulated by public administration so as to foster the exercise of free speech by the greatest possible number of social sectors.

A human right

Article 19 of the Universal Declaration of Human Rights states “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” This isn’t a privilege of journalists much less of private media-owning entrepreneurs.

This article establishes the right of everyone to be informed (reception) and to inform (emission). Every person, every social group, whether or not motivated by profit, from the ruling party or from the opposition, independent of religion, has the right to compete to run a television or radio channel. It’s the responsibility of the relevant, state bodies—autonomous ones, not dependent on the particular government in office—to distribute these limited frequencies as equitably and representatively as possible.

Are they pirates?

The most serious threat affecting our countries’ freedom of expression, although never reported by the Inter-American Press Association or the Association for International Broadcasting, is the increasing monopoly of the frequencies. It has led many civil society groups—indigenous, young people, women and trade unions—to go on the air without authorization. They are immediately classified as “pirate radios” and persecuted.

In Mexico, the Federal Telecommunications Commission seizes equipment and hunts down community radio broadcasters, while looking favorably on the irritating duopoly of Televisa and TV Azteca, which together run 434 (94.14%) of the 461 commercial television stations in the country. On July 10 several agents from the Public Ministry entered the house of Felipe Ramírez Serrano, director of Radio Yuririra, in Guanajuato. They beat him unconscious, threw him into an armored truck and imprisoned him. Later, more than 200 police armed with rifles arrived in armored cars and buses to close down the community radio station. What was the pretext? It wasn’t licensed to operate. The real reason? It had reported on the embezzlement of funds by the mayor and the governor.

Pirate radios? A pirate is someone who appropriates another’s treasure. While the radio spectrum is a treasure, it’s a collective treasure and, as such, can’t be held in a locked chest to which only a few have a key. The real pirates and privateers are the governors who divvy up the frequencies among their political friends and the officials who put them up to tender and award them to the highest bidder, contemplating no social or other criteria.

They say these radio stations are illegal. But illegal means acting outside or against the law. Our countries’ Constitutions recognize free speech and the right of all citizens to disseminate their ideas, regardless of borders, via any means of communication. This is the first law. In fact, those who are acting illegally and unconstitutionally are the ones who don’t grant frequencies to civil organizations that apply for them.

If they deny our right...

This year, when I visited San José, Costa Rica, at the invitation of the National Outreach University (UNED), I publicly stated something quite elemental: “Communication is a right. If they deny us that right, we’ll exercise it. We aren’t pirates if we go on the air without permission. The pirates are those who steal our voice.”

Costa Rica’s National Chamber of Radios created an outcry in the press. They said I was instigating violence, breaking the law, almost a terrorist. The same old story: they make illegitimate laws then demand that we comply with them.

Something similar happened in Ecuador. Barely ten years ago, the term “community radio” was viewed with suspicion. The law at the time required authorization from the Armed Forces for a community frequency to be granted. The reason given was national security. “There are only a couple of letters between community and communist,” declared a senior private media entrepreneur.

Despite this outmoded thinking, which hides evident economic and political interests, something is changing in Latin American communication, especially in the legal frameworks that try to regulate it. Something has changed in Ecuador’s recent communication law, which has lights and also shadows.

A law mandated by the new Constitution

Ecuador’s National Assembly, in which the ruling party has a large majority, passed the Organic Communication Law on June 14, 2013. This law was mandated by the Constitution approved in 2008: a mandate that wasn’t met right away. Rightwing parties and mainstream media entrepreneurs stretched it out for more than four years, arguing that in matters of communication the best law is one that doesn’t exist. Invoking the Chapultepec Declaration on Freedom of Expression (1994), they said that any regulation in this field would end up an attack on free speech. Nor were the Assembly representatives for the ruling party, Alianza País, in a hurry to pass a communication law. Some, including President Rafael Correa himself, said that Ecuador could continue working with the existing law, dating back to 1975, the time of the dictator, General Rodríguez Lara. That law, in addition to being obsolete, openly discriminated against community media.

Who pushed for the law?

Since 1995, a number of civil society organizations joined forces to obtain a modern inclusive law. This struggle involved CONAIE, the indigenous movement, the Grassroots Educational Radio Coordinator (CORAPE) radio stations, the Latin American Association of Radio Education (ALER), the World Association of Community Radio Broadcasters (AMARC), the International Center for Communication Studies for Latin America (CIESPAL), the Latin American Information Agency (ALAI), the Latin American and Caribbean Catholic Communication Organization (OCLACC), Impassioned Radio Enthusiasts, the “El Churo” collective of young adults promoting community culture and communication and other communication networks. All these national and international organizations won a major victory when Ecuador’s new Constitution was passed in 2008 because it was the first time the “communi¬tarian” concept was included in any of the country’s 20 Constitutions.

Article 16 states: “All persons, individually or collectively, have the right to create social media and equal access to use the radio spectrum’s frequencies for running public, private and community radio and television stations.” And Article 17 says that, in order to promote plurality and diversity in the media, the government “will ensure transparent and equitable allocation of the radio spectrum’s frequencies for the running of public, private and community radio and television stations and will not permit direct or indirect oligopoly or monopoly of the media’s property and use of the frequencies.”

A fair tripartite distribution

It was based on these constitutional articles, included only as a result of considerable patience and lobbying, that these same organizations presented a non-negotiable demand for the new law being written by a protem commission predominantly from Alianza País.

The demand was for radio and television frequencies to be equitably distributed among the three sectors. This is the bedrock issue: you can define free speech any way you want; you can write every code of journalistic ethics, but the one with the frequencies has the public voice and image. That’s why our organizations proposed that a third of the frequencies be allocated to the public sector, a third to the private sector and the other third to the community sector.

The battle wasn’t easy. Private businessmen who until then controlled 95% of all the frequencies didn’t want to hear about the cake being divided three ways. This would seriously affect their interests. Nor did the Alianza País Assembly members, some of whom were private concessionaires of the frequencies. Others simply didn’t understand the claim. I remember Rolando Panchana, the National Assembly vice president at the time, saying he’d never heard of such “nonsense” during his many years as a journalist. Some Venezuelan specialists working with the government confirmed the technical impossibility of a tripartite distribution: conflicts of interest, excuses and ignorance.

Two major Latin American reinforcements

While National Assembly debate was still deadlocked, we received two significant reinforcements. The first was the passage of the Argentinian Law on Audiovisual Communication Services in 2009, which reserved 33% of the frequencies for nonprofit media. This same amount had already been included in the Uruguayan Community Broadcasting Law of 2007, a pioneer in this approach to distributing the spectrum.

The other reinforcement was Bolivia’s General Telecommunications Law, passed in 2011, which allocated 33% of the frequencies to public media, 33% to private media and 34% to community media (17% for social community media and 17% for the media of the original indigenous peoples and intercultural and Afro-Bolivian communities).

With these recognitions—and the commitment of Alianza País Assembly representative Mauro Andino, who chaired the commission drafting the law and had the wisdom to take counsel from lawyer Romel Jurado—a very progressive, very revolutionary bill was drafted, gathering together civil society’s main demands.

This bill was debated during the previous National Assembly’s term in office. Unfortunately, through the shortsightedness of some colleagues from the Pachakutik indigenous movement, it didn’t get the votes needed to pass. This was a great loss, as that law rather than the one we now have would have been a cornerstone in Latin American communication.

The good of the law

Right to Communication: In the law we got, communication is finally recognized as a human right on a par with the right to health, work and education. No longer do only journalists have freedom of expression and, even less so media-owning entrepreneurs; it’s considered a universal, individual and collective right, superseding the technical and commercial perspective imported from the United States.

Frequency distribution: Among other freedoms, the right to communication means equitable access to radio and television frequencies. Article 106 is a veritable jewel in this law’s crown. It establishes the distribution of these frequencies as 33% for public media, 33% for private media and 34% for community media. This 1% advantage makes a big difference and reminds us that the radio spectrum belongs to the public; the frequencies aren’t state property and even less that of the market. It establishes that they are a common heritage of humanity.

But how can this tripartite distribution take place if the frequencies are already in the hands of certain concessionaires? By returning the many frequencies illegally allocated through multifarious trickery invented by CONARTEL, the former telecommunication body.

Digital frequencies: A major achievement in the frequency distribution process is that it includes impending digital frequencies. Ecuador has adopted the Japanese-Brazilian model, which enables at least four digital signals where only one channel would have fit formerly.

If these four signals stay in the hands of the same concessionaires, as has already happened in most European countries, we would be quadrupling the concentration of media control. The new law establishes that these new signals also be distributed equitably between the three sectors.

No monopolies: Speaking of concentration, Article 113 is stellar. In order to ensure the greatest diversity and plurality in the public sphere, it prohibits frequency monopoly. Based on this law, a concessionaire in Ecuador may only have one FM frequency band, one in AM and one in TV. As the country currently has 1,147 open radio and 547 TV stations, the voices and faces will multiply when these media channels are proportionately distributed. This is a historic breakthrough in a country where a dozen families control most of the spectrum.

National production: Ecuadoran cultural diversity will have greater presence in the media. Filmmakers, musicians, actors, cultural groups and local producers will be favored because the law establishes that at least 60% of daily programming suitable for all audiences must be dedicated to broadcasting nationally produced material, including 10% independent national production (Article 97). National music must represent 50% of music programming (Article 103). Even advertising will be nationally produced.

Diversity of cultures: From now on the media are obliged to disseminate content that expresses and reflects the worldview, culture, traditions, knowledge and wisdom of the indigenous, Afro-Ecuadoran and Montubia peoples and nations in at least 5% of its daily programming (Article 36).

Children and adolescents: The media has to prioritize giving the voices and rights of children and adolescents their own space (Articles 15 and 65). The rights of people with disabilities are also guaranteed by the law (Article 37).

No toxic advertising: Article 94 prohibits advertising alcoholic beverages, cigarettes and anything related to drugs and child pornography or products whose regular use is damaging to health. As it’s proven that sodas and junk food are damaging to health, especially of children, we wonder if the Ecuadoran Health Ministry will be brave enough to ban advertising of this type of food and Coca Colas, Pepsi Colas and other “energy” drinks?

The bad of the lawWe could continue to list the many good points in the law but there are others that aren’t so good and all these were illicitly introduced just before the National Assembly passed the bill.

ICTs: The worst part of the law, in our opinion, isn’t what it says but what it doesn’t say. The whole issue of information and communication technologies (ICTs) is barely mentioned, and then only rhetorically, in Article 35, without specifying anything about universal access to this technology.

Government officials say this issue will be covered in another law, the telecommunications act. So, ignoring digital convergence, “communication” is detached from “telecommunication,” separating contents from hardware, while everyone knows that the biggest business involves these technologies, a business the government doesn’t want to “democratize.”

Government public media: Article 83 authorizes the creation of “official public media.” This definition is, to put it mildly, contradictory. Public media, because it’s funded by taxpayers, by definition must have a pluralist and independent editorial line, which government media doesn’t have. Quite the opposite.

The worst part about this article is that such official media are included in the 33% corresponding to public media and it doesn’t indicate what part of that it could take up; so, without breaking the law, the government could control and use a full third of the spectrum for government information and propaganda.

Mandatory degrees: Ignoring the Inter-American Commission of Human Rights’ Declaration of the Principles of Freedom of Expression (Principle 6), the law requires that anyone permanently working at any level in any media must have a professional degree in journalism (Article 42).

A peasant correspondent wouldn’t be able to send in news because he hasn’t gone to university. A broadcaster couldn’t present a program because he doesn’t have a degree. This regulation, thanks to the egotism of some university unions, infringes on free speech and ruins the future of community and local media. The mandatory degree marginalizes hundreds of communicators whose accumulated empirical experience has equal merit to a degree.

Media lynching: Article 26 introduces a metaphorical concept that, while seeking to prevent the dissemination of systematically produced information discrediting an individual or legal entity, may cause serious self-censorship among journalists, especially those engaged in investigative journalism. How can an inquiry into the corruption of a public official proceed when he only has to charge that his reputation is being affected by the investigation? There have already been important cases in the country that confirm this danger.

Catholic Church privileges: After pressure from Bishop Antonio Arregui, the chairman of the Episcopal Conference and a prominent member of Opus Dei, codicil 17 was included in the law, which grants Catholic Church privileges incompatible with a secular state.

As the law prohibits having more than one broadcasting band, the Catholic Church may conceal several bands controlled by the same concessionaire—e.g. Radio María has a dozen frequencies—by calling them “entities belonging to the same religious family.”

Freedom on the Internet?: Article 20 establishes that those who post comments on the media’s webpages must be duly identified by the media. This explicitly affects online anonymity, an essential element of freedom of expression on the Internet. In addition, user privacy could be compromised since it doesn’t establish how the media will handle the personal data they are required to request. The separation between media-generated information and individuals’ comments should be enough to demarcate responsibilities.

Regulation Council and Superintendence: Who will write the binding report granting radio and TV frequencies? The Regulation Council. Who will regulate universal access to communication? The same council, which has 11 powers, all of them considerable.

In the first draft of the bill, this council’s composition had a relatively civic profile with a representative from the universities, another from the indigenous nations and one from human rights organizations. All this vanished in the final version, leaving the approved Council with five members, all from the government (Article 47 et seq.). Worst of all, a Superintendence of Information and Communication was established, a body that will monitor, control and sanction violations of the law, particularly regarding content regulation. It’ll be headed by a single public official proposed by the President’s Office (Articles 55 et seq.). What independence can this institutional design have?

We could find disturbing content in other articles because even the positive, in practice, will depend on a Council and Superintendence lacking the requisite autonomy and independence.

The ugly of the law


Last June, with Alianza País already having an absolute majority in the National Assembly, the text of the Organic Law of Communication was put to the vote within a couple of hours receiving it, without parliamentary debate.
The text that was approved wasn’t the same as the one that had been presented in previous sessions. It had contraband content: at least 40 modifications, including articles added and deleted. The Assembly members weren’t even presented with these new texts sufficiently in advance.

All these modifications, many of them substantial (the composition of the Council and Superintendence, official public media, etc.), are unconstitutional because they weren’t debated in the Assembly plenary. We don’t understand why the government acted in such haste given that it had more than enough votes to pass the law. The Assembly’s chairperson, Gabriela Rivadeneira, could have been more consistent and honest by allowing the new texts to be debated for as long as was needed. But she didn’t. A very ugly business.

Despite everything...

Despite all the bad and the ugly of the law, and because of all the good in it, we in the social networks and organizations who have been accompanying this process for years and even decades haven’t lost our optimism or desire to continue protesting and proposing because there’s a lot at stake in this Communication Law; not just for Ecuador but for other countries in the Latin American family.

José Ignacio López Vigil, coordinator of Impassioned Radio Enthusiasts, participated in auditing radio and television frequencies in Ecuador and in the self-selected platform that prepared the first draft bill of Ecuador’s Communication Law.

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