On December 30, César Ricaurte, the executive director of Fundamedios, received a copyright complaint with the potential to close his entire website. The complaint, filed on behalf of Ecuador's communications regulator SECOM by a company called Ares Rights, ordered the independent press freedom group to remove an image of President Rafael Correa from its website, he told CPJ.
The incident, which Fundamedios denounced on its website as censorship, is an example of how copyright complaints have been used against Ecuadoran news outlets and groups critical of the Correa administration. The country already has one of the worst press freedom records in the Americas region. CPJ has documented how restrictive media laws, which led to a US$350,000 fine for El Universo in June, and criminal defamation cases are used against critical outlets. Local media and freedom of speech advocates with whom CPJ spoke said U.S. copyright law is also being used to restrict critical commentary and information.
SECOM is not the only Ecuadoran institution on whose behalf Ares Rights has filed a complaint. The company, which according to copyright notices is based in Barcelona, has sent takedown notices on behalf of the national intelligence agency, the state television network ECTV, and the president, according to the Lumen database. The database, run by Harvard University's Berkman Center for Internet and Society research, has collected and analyzed millions of takedown requests since 2001. Its data includes details of the recipient, on whose behalf the request was made, and details of the targeted content.
The database shows that Ares Rights has filed at least 186 complaints since 2011, with 87 made on behalf of politicians, political parties, state media, and state agencies in the Americas. Of that number, 74 were filed on behalf of clients in Ecuador. Such complaints have resulted in the removal of images, leaked documents, and documentaries on the Ecuadoran government, Ricaurte and others told CPJ.
When filing complaints Ares Rights cites the Digital Millennium Copyright Act, which was passed by U.S. Congress in 1998 to implement two 1996 copyright treaties. Under the law website hosts, Internet service providers, search engines, and other intermediaries are protected from liability for hosting material that infringes copyright, but only if content from sites or social media accounts they host is removed after the intermediary receives a notice of complaint, among other legal requirements imposed by the act.
Because the U.S. recognizes foreign intellectual property rights through a number of international treaties, foreign individuals can appeal to U.S.-based Internet platforms and tech companies to remove material that infringes copyright, Kit Walsh, a staff attorney with the Electronic Frontier Foundation, told CPJ. And, with some of the largest Web and content-hosting companies based in the U.S., the law has a wide reach.
The law also protects fair use, which protects the limited use of copyrighted works for purposes such as public commentary or the reproduction of copyrighted material for news purposes. But companies often remove content first and ask questions later, Walsh told CPJ. "There is little incentive to stand up for fair use. The default is to comply with the copyright complaint," Walsh said, adding that Electronic Frontier Foundation has documented many instances where the law appeared to be used for censorship.
Under the law, a user who is the target of a complaint can file a counter-notice with the Web host, but the rights holder may then file a lawsuit against the user in a U.S. court.
The complaint against Fundamedios, which was filed with the group's website host Amazon Web Services, related to an image published on December 16, alongside an article in which the press freedom group denounced Correa's rhetoric toward the media. The picture was made up of two images --a screenshot of Correa taken from one of his weekly speeches broadcast on the state-run ECTV and a picture of former El Universo columnist Emilio Palacio Urrutia, whom the president called a "psychopath" in his speech.
Fundamedios appealed, saying the image was protected under fair use. In an email sent to Amazon Web Services, the organization added that as a public broadcast of a presidential speech the image should not be protected by copyright. As of publication of this blog post, the Fundamedios website was still online, and the photo was still available. Amazon Web Services did not immediately respond to CPJ's request for comment.
In this case, Ares Rights filed the complaint on behalf of SECOM, according to a copy of the notification received by Fundamedios and forwarded to CPJ.
Raul Mediet, from SECOM's legal department, declined to comment on the regulator's ties to Ares Rights other than to say that they have no contractual relationship. He told CPJ that the Ecuadoran government has a right to protect its intellectual property.
When CPJ contacted Jonathan Palma, Ares Rights' chief executive officer, about the use of these notices, he declined to comment.
When CPJ spoke with Catalina Botero, a researcher at the Colombian human rights organization DeJusticia, about the use of the law to suppress criticism, she said: "There's a very clear pattern." The former special rapporteur for freedom of expression at the Inter-American Commission on Human Rights added, "It's the idea of maintaining complete control over the image and voice of the president, and restricting content, documentaries, and photos that illustrate questionable actions on the part of public officials and, in particular, the president."
Among the news outlets and content targeted by Ares Rights is a documentary on allegations of government repression in an indigenous village opposed to a mining plan, and images published on the news website Plan V. According to local news reports, Ares Rights succeeded in December 2013 in temporarily removing the documentary "Ascoso a Intag" (Harassment of the Intag) from YouTube. And, on December 29 last year, Plan V received a copyright complaint over photos accompanying a report that called into question contracts at the state-owned Esmeraldas refinery, its director, Juan Carlos Calderón, told CPJ. He said the photos were either taken from the public domain or protected by fair use. Calderón added that the photos were taken down.
Ares Rights also used the Digital Millennium Copyright Act on behalf of clients with apparent links to Ecuador to file a complaint against BuzzFeed in 2013 after it reported on leaked documents alleging the country's intelligence agency had purchased surveillance equipment. Ares Rights filed a complaint against BuzzFeed on behalf of a group of clients that included the names of officials at Ecuador's intelligence agency, BuzzFeed reported. The news and entertainment site reported it was able to put the documents back online by switching to a different U.S.-based hosting service. The legal department of the intelligence agency told CPJ no one in the department was available to comment.
Despite calls for transparency from civil society organizations and local press, the Ecuadoran government has provided no public explanation for why a Spanish copyright company is filing takedown requests on its behalf.
- The U.S. Copyright Office is currently reviewing the Digital Millennium Copyright Act's safe harbor provisions for online entities. Comments will be accepted online beginning February 1. The public consultation period will remain open until March 21.
EDITOR'S NOTE: The second paragraph of this blog has been modified to reflect the correct spelling of El Universo.