The administration of President Lenín Moreno has dramatically diverged from that of his predecessor, Rafael Correa, who was severely critical of the Ecuadoran press and passed one of the most restrictive media laws in the region. Nonetheless, journalists say they will be wary until Moreno fulfills his promises to scale back the Communications Law and scrap the regulator that enforced it. A CPJ special report by Natalie Southwick and John Otis
Published July 12, 2018.
On March 7, 2018, Carlos Ochoa, the former head of the Supercom, Ecuador’s feared media regulator, left his office in disgrace, facing an investigation into his tenure as head of the state-run TV outlet GamaTV. The dismissal of Ochoa, once one of the most powerful figures looming over Ecuador’s journalists, was a clear sign of a stunning change in the Ecuadoran media environment brought about by the country’s new president, Lenín Moreno.
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The April 2017 election of Moreno, who served as former President Rafael Correa’s vice president from 2007-13, was expected to be a passing of the torch. Most Ecuadorans assumed Moreno would serve as Correa’s proxy, perhaps until the ex-president returned to power.
But Moreno evidently had no intention of keeping Correa’s seat warm for him. Since Correa left office in May 2017, numerous reporters and editors have described to CPJ a honeymoon between Moreno’s government and the news media. The Moreno administration, they said, has sidelined the Supercom; sought to improve relations with the news media; encouraged newspapers, websites, and radio and TV stations to carry out vigorous investigative journalism; and pledged to reform the country’s Communications Law, among the region’s most repressive pieces of media legislation.
Yet journalists remain wary. During a CPJ mission in March, journalists said that Correa’s policies created both editorial and financial havoc for independent news organizations. Until Moreno makes good on his pledge to strip the Communications Law of its most repressive articles and to dissolve the Supercom once and for all, Ecuadoran journalists will continue to work in fear.
A State of Repression
When economist Rafael Correa won Ecuador’s 2007 presidential election, he became part of a leftist wave sweeping across the continent. From Brazil’s Luiz Inácio Lula da Silva to Bolivia’s Evo Morales, the so-called “pink tide” ushered in more than a decade of left-wing economic and social policies throughout Latin America. This generation of leaders, including Argentina’s Cristina Fernández de Kirchner and Néstor Kirchner and Venezuela’s Hugo Chávez, banded together to form a regional counterweight to what they viewed as damaging interference by the United States and corporate interests in their countries.
Emboldened by this alliance, Correa and Chávez led a campaign against regional institutions like the Organization of American States (OAS), which they believed were dominated by Washington and sought to advance U.S. interests. In late 2011, Correa launched a broadside against Colombian lawyer Catalina Botero, then the OAS special rapporteur for freedom of expression, who had criticized Correa and some other leftist leaders for their repressive media policies. In early 2012, the bloc escalated its crusade against the special rapporteur, as a working group led by Ecuador and Venezuela proposed a set of restrictions limiting the office’s ability to issue press releases or accept external funding. Though the group ultimately failed, Correa’s ambitions at the international level were clear.
Domestically, the notoriously thin-skinned president did his best to silence critics that might look too closely at allegations of corruption propping up his administration. In 2008, Correa oversaw a successful constitutional referendum that consolidated executive power and introduced reforms regulating communication. Five years later, following Correa’s re-election in February 2013, Ecuador’s National Assembly approved the Organic Communications Law, codifying his anti-press tendencies into law. The next year, the legislature passed a bill that defined communication as a public service, allowing the government to regulate it like electricity or water and to determine what constitutes issues of public interest.
As CPJ has documented, the Communications Law, also known as the Ley Mordaza or “gag law,” institutionalized repressive mechanisms, established state regulation of editorial content, and gave authorities the power to impose arbitrary sanctions and censor the press. The law introduced dubious new legal concepts, such as the crime of “media lynching” (linchamiento mediático), defined as “the dissemination of concerted and reiterative information … with the purpose of discrediting or damaging the reputation” of a person or legal entity. In practice, this turned ongoing investigations, typically published over multiple articles, into potential criminal acts.
“The law was created to turn media outlets into their own censors,” said César Pérez, deputy director of the Guayaquil daily newspaper El Universo, a consistent target of Correa’s ire. The law also created the Superintendency of Communication and Information, or Supercom, a state regulator tasked with monitoring media content and ensuring compliance with the law. It granted the Supercom the power to open investigations into outlets or individual journalists and impose measures including fines, publication of “corrections,” and public apologies—a power it regularly used to target critical journalism, CPJ found. In the four years after its creation, the regulator processed 1,081 cases, with 675 resulting in sanctions, according to the agency’s own report.
Media outlets faced multimillion-dollar fines for everything from failing to report on specific events to providing what authorities deemed “unbalanced” coverage. Officials found increasingly creative interpretations of the Ecuadoran legal structure to turn against journalists. After El Universo published a photo of a political candidate at an event with his children, the Supercom sanctioned the newspaper for violating the rights of children by involving them in politics, and imposed a $3,000 fine.
Together the Supercom and the Communications Law put tremendous pressure on Ecuador’s media. The country’s two major newspapers, El Universo and the Quito daily El Comercio, and the two largest privately owned television channels, Teleamazonas and Ecuavisa, both broadcasting nationally from Quito, repeatedly found themselves in the government’s crosshairs for offenses ranging from failing to reprint flattering stories to publishing a controversial cartoon.
In June 2014, after Correa complained on his weekly television program about the Ecuadoran media’s coverage of his visit to Chile, the Supercom began investigating four newspapers for failing to mention Correa received an honorary doctorate from a Chilean university. Correa often used his television and radio address, broadcast every Saturday, to criticize what he perceived as unfair coverage and lash out at individual reporters. Earlier that year, Supercom fined El Universo more than $90,000 for publishing a cartoon showing police searching the home of journalist and activist Fernando Villavicencio, who had recently reported on a corruption scandal. In addition, Supercom ordered cartoonist Xavier Bonilla, known as Bonil, to “correct” the cartoon. El Universo staff say the newspaper faced 10 lawsuits under Correa, amounting to more than $40 million in potential fines—an impossible sum for an Ecuadoran media company to pay.
Teleamazonas Executive News Producer Milton Pérez told CPJ that for the last five years, “We practically had to work with the law in one hand, which of course leads to self-censorship.”
Journalists, activists and press freedom defenders across Ecuador said reforming—or repealing—the communications law is one of their top priorities under the new government.
“The climate has improved, but the norms of the Correa government are still intact,” said César Ricaurte, director of Ecuadoran press freedom organization Fundamedios.
The National Union of Journalists (UNP) has identified some of the communications law’s most problematic provisions. Article 18 of the law states that the deliberate failure to cover events of public interest constitutes prior censorship, which is illegal. The concept of “media lynching” is covered in Article 26, while Articles 61 and 66 prohibit the publication of discriminatory content or content depicting violence or the intentional use of force, respectively—but without clearly defining any of those concepts. The ambiguity of the law’s language leaves these terms open to flexible interpretation by lawyers, self-interested public officials and courts under pressure to side with the interests of the executive, according to UNP president Guadalupe Fierro.
Though Correa was the media’s most visible adversary, leading crowds in chants of “prensa corrupta” (“corrupt press”) at public appearances, journalists told CPJ the greatest immediate threat was the Supercom itself, which has weaponized the Communications Law.
“The main user of the Communications Law was the Supercom,” said Pedro Valverde, a lawyer for El Universo. “It gave them a tool to punish media outlets.”
Under Ochoa, himself a former TV reporter, the Supercom became what Fierro described as a “parallel justice system,” issuing an average of up to five sanctions per week, Fundamedios told CPJ.
“The Supercom as a parallel justice system shouldn’t exist. We don’t have a separate justice system for architects, so why should we have one for journalists?” said Alfonso Espinosa de los Monteros, vice president of news for Ecuavisa.
In meetings with CPJ, everyone from journalists to members of the National Assembly acknowledged the Supercom’s overreach, describing its outsized self-imposed role as “judge and jury.” Local media were especially vulnerable, hit by sanctions and financial regulations that seemed designed to bankrupt them. A spokesperson for Supercom said in a message on July 2 that no one was immediately available to answer CPJ’s queries, but that the agency was looking into the issues raised.
“Bigger media outlets could fight back, but for smaller outlets, and those in the provinces, it wasn’t necessary to do much to neutralize them,” said Nila Velázquez, El Universo’s opinion editor.
The Correa administration also used many subtle and not-so-subtle strategies to delegitimize Ecuadoran media. Policies that emerged from arguably legitimate goals, such as combating media ownership concentration, or limiting private companies’ influence over editorial decisions, were quickly turned into tools of censorship and control.
A law passed in 2011 to break up monopolies was used to undermine the economic viability of critical media companies by forcing them to sell off non-media assets. For example, El Universo’s owners were forced to unload their highly profitable travel agency. The Supercom diminished journalists’ credibility by forcing them to make public apologies for their reporting. Government officials even held the airwaves hostage by refusing to renew outlets’ licenses until the last minute, or making them jump through a series of bureaucratic hoops to earn them, reporters said. A combination of attacks, including office raids, fines, and tax investigations, made life impossible for the investigative newsmagazine Vanguardia, which shuttered in 2013.
At the same time, the government consolidated its control of the national media landscape. By the time Correa was re-elected in 2013, his government oversaw five TV channels including two seized from private owners, four radio stations, two newspapers and four magazines—a major expansion from the single radio station the government controlled when Correa took office in 2007.
Not even universities were safe. The office of the secretary of communication, led by Correa ally Fernando Alvarado, hosted several annual “summits for responsible journalism” aimed at working journalists and journalism students, said Daniela Aguilar, director of news website La Historia. At these events, speakers lectured attendees on the ways in which journalists “harassed” politicians and warned them that asking tricky questions was “disrespectful” to authorities, according to Aguilar and content posted on the summit’s official Twitter and Facebook accounts.
Meanwhile, years of visible harassment scared students away from the “dangerous” field of journalism, and universities responded to falling enrollment by closing programs, members of the UNP told CPJ.
Eleven Years, Six Lawsuits
The Communications Law and the Supercom gave Correa the tools he needed to bring the Ecuadoran media to heel. But local officials also availed themselves of the repressive apparatus, another reason why journalists say reform is urgent. Carlos Mantilla, the top editor at El Comercio, told CPJ that local officials “love” the Communications Law and use it frequently to threaten journalists. Even local fire departments have come forth to demand corrections and retractions from news outlets, according to Mantilla.
The most egregious example is a long-running dispute between a prominent radio reporter and powerful politician who is mayor of the southern city of Loja.
In a bizarre 11-year courtroom drama, journalist Freddy Aponte has faced six lawsuits filed by Loja Mayor José Bolívar Castillo. These legal battles have landed Aponte in prison, nearly bankrupted him, and stripped him of many of his rights as an Ecuadoran citizen, including the right to vote.
Castillo, who served several stints as mayor and was reelected in 2014, has a lengthy record of taking reporters to court, according to Fundamedios. In addition, while briefly serving as a national legislator during the Correa administration, Castillo was a key backer of the Communications Law and pushed to include the Supercom watchdog agency in the legislation, according to news reports.
Once the Supercom was established, Castillo made use of it. In 2015, he filed a complaint before the Supercom, claiming that the Quito daily La Hora had failed to cover his state of the city speech. Calling this “prior censorship” of information that the public had the right to know, the Supercom fined La Hora about $3,500.
The threats posed by such lawsuits mean “we are on a knife’s edge when we decide what stories to publish,” Alexis Serrano, news editor at La Hora, told CPJ. These survival tactics distract journalists from doing their work as newsrooms worry about staying solvent while trying not to get sued. “In 10 years, we haven’t had time to think about how to do better investigative journalism,” Serrano said.
In a communiqué last year Fundamedios called Loja a “danger zone” for journalists, “all due to the actions against free expression by the mayor.”
Calls by CPJ to Castillo’s city hall office were not returned.
The bad blood between Aponte and Castillo goes back to the 1990s when the journalist reported that Castillo had been mistreating homeless people in the city. In another instance, Aponte claimed on his radio show that the Castillo administration had purchased a valuable downtown property but placed the deed in the name of one of his relatives.
Castillo denied wrongdoing and filed a defamation lawsuit against Aponte. A local court dismissed the case for lack of evidence. But on appeal, Ecuador’s Supreme Court on April 9, 2008, found Aponte guilty and later sentenced him to six months in prison. Once released, Aponte sank into a deep depression that required periodic hospitalizations. Aponte was also ordered to pay Castillo $54,633 in damages. When Aponte was unable to do so, Castillo filed another lawsuit for nonpayment. Aponte was found guilty of hiding his true financial assets and sentenced to five years in prison. That ruling was overturned by the Supreme Court on March 26, 2013.
Castillo filed another lawsuit against Aponte in a Loja civil court last year to try to collect the $54,633 in damages. On July 3, 2017—nearly two months after Moreno was sworn in as president—a judge declared Aponte legally “insolvent.” The ruling, which is final and cannot be appealed, according to Ricaurte of Fundamedios and Aponte’s lawyer Adolfo Moreno, prohibits Aponte from leaving Ecuador, voting in elections, taking out bank loans, administering his assets, or entering into legal contracts. Aponte describes these sanctions as an effort to humiliate him and drive him out of journalism.
Aponte said that lawmakers in the National Assembly are considering pardoning him. But he said the move would be an unsatisfying coda because he has always maintained his innocence. During a tearful interview with CPJ, Aponte declared: “I am worse off now than I was under the Correa government.”
The Road Ahead
Since his inauguration, Moreno has extended an olive branch to the media, meeting with journalists in early 2018 and taking suggestions on potential reforms from the Grupo Democrático, a civil society coalition that includes Fundamedios, the UNP and dozens of journalists.
The change surprised many observers, but some analysts say it is a rational response to the shifting dynamics and new priorities in the region. Just as Correa came to power in the midst of a leftist wave, Moreno has taken over as Latin American countries face instability, rising right-wing influence and the apparent failure of many “pink tide” policies. Brazil’s Lula da Silva is in prison on corruption and money laundering charges, while Chávez’s successor, Nicolás Maduro, has overseen Venezuela’s slide into a full-blown economic meltdown and South America’s biggest humanitarian crisis.
Journalists and analysts in Ecuador emphasized that Moreno inherited a country in transition, with a struggling economy and a stack of corruption allegations against Correa-era officials. In his first year as president, Moreno has recognized that his predecessor burned bridges that will take time and effort to repair. Moreno has publicly made the fight against corruption a key goal of his mandate. He appears to recognize the vital role a free and independent media can play in investigating and bringing to light any corruption that flourished under Correa. In addition to his meetings with local journalists, he recently met with Human Rights Watch and the Inter American Press Association to discuss press freedom concerns, among other human rights issues.
A vocal sector of civil society and the media support Moreno’s reform efforts, and international analysts have pointed out that reforming such a visible remnant of Correa’s legacy may help Moreno attract more foreign investment and cooperation. Still, Moreno must navigate the competing interests of domestic political factions, including his own party, which splintered when he broke with Correa, as well as more conservative opposition parties.
While journalists still face pressure from officials, members of the media cite encouraging signs that the judiciary is more willing to defend principles of press freedom.
Judges in several major cases have ruled in favor of journalists. For example, Correa sued Martín Pallares, a founder of the independent news website 4pelagatos, for a satirical article published in April 2017. In July, a Quito judge found Pallares not guilty. In February 2018, Ecuador’s Supreme Court ruled in favor of Villavicencio, director of the news website Focus Ecuador, ending one of the major outstanding cases from the Correa era. Villavicencio, an outspoken investigative reporter and former political aide, faced criminal charges of distributing allegedly confidential emails by public officials. He fled the country multiple times over the course of his case, and filed for asylum in Peru in April 2017, before finally returning to Ecuador in September 2017.
“A ruling in favor of the media never would have happened in Correa’s time,” said Juan Pablo Rojas, Ecuavisa’s general counsel. Though Ecuador’s judiciary maintained independence under Correa, Human Rights Watch said it found evidence that high-level officials sometimes pressured judges to rule in favor of the government, and interfered in appointments and removals. With Moreno’s government taking a less confrontational approach to critical reporting, and reporters and outlets believing they may now have a fair shot at winning on appeal, journalists say they are less fearful of excessive lawsuits from the presidential palace.
At his home in Quito, without the threat of arrest hanging over him for the first time in years, Villavicencio told CPJ he saw the ruling as an important precedent establishing journalists’ right to share information of public interest. It is a right he has also defended via his Twitter account, which has been suspended multiple times since he returned to the country.
Despite promising signs, journalists recognize that Moreno faces many challenges, including the ongoing economic crisis, and it will be tough to keep the issue of press freedom front and center. But the recent kidnapping and murder of two journalists and their driver has served as a reminder of what’s at stake.
On March 26, dissident former members of Colombia’s FARC guerrilla group kidnapped three members of an El Comercio reporting team in the town of Mataje near the Colombian border. After three weeks of contradictory information from authorities on both sides of the border, and the release of a harrowing video that showed the three men chained together, Moreno confirmed on April 13 that reporter Javier Ortega, photographer Paúl Rivas, and their driver Efrain Segarra had been killed, likely by their captors.
The kidnapping and murder of Ortega, Rivas and Segarra set off a national wave of mourning. As El Comercio staff and their colleagues, joined by the three men’s families, protested outside the presidential palace, the role of the press in Ecuadoran society rose to the forefront of the national conversation and moved the reform agenda forward.
In meetings with CPJ in March, Secretary of Communication Andrés Michelena emphasized the government’s desire to ensure compliance with international standards. In April, the president’s office sent formal letters inviting David Kaye, U.N. special rapporteur for freedom of expression, and Edison Lanza, OAS special rapporteur for freedom of expression, to visit the country and evaluate Ecuador’s compliance with international law. According to Lanza’s office, the two experts plan to visit Ecuador in August. The move is particularly ironic because Correa excoriated the previous OAS special rapporteur, and sought to destroy the office.
While the office of the president cannot unilaterally abolish the Communications Law, it can choose to de-prioritize enforcement via presidential decree—though a future administration could just as easily reverse this decision. “The president says he doesn’t want to apply the law, but the fact is the law continues to apply,” El Comercio columnist Lolo Echeverría told CPJ.
The Supercom has sat largely dormant under Moreno—an approach that appears intentional. “If we’re in a constructive process, we should get rid of the Supercom. It shouldn’t be a weapon for public officials,” Michelena told CPJ. Echoing the Grupo Democrático’s proposals, he suggested some of the agency’s non-sanctioning responsibilities could pass to other entities like the state-run information regulatory council CORDICOM, while the ability to impose sanctions should be abolished altogether.
Still, concerns remain about whether the National Assembly can agree on a reform proposal, especially as the ruling Alianza País party has splintered following the schism between Correa and Moreno. “Within the governing party, there’s no consensus about the dismantling of the Communications Law,” noted Ricaurte of Fundamedios.
On May 21, Moreno sent the National Assembly a proposal for major reforms to the Communications Law. The proposal includes 80 changes to the law, including the elimination of the Supercom. The previous week, he announced the government would sell a number of media outlets seized under Correa, returning them to private ownership. As of mid-June, Moreno was considering three candidates to replace Ochoa as head of the Supercom; in what would mark a major change for the agency’s role, the new superintendent would be instructed to focus on investigating the “persecution and attacks that victimized journalists and media outlets” under previous leaders, according to Moreno spokesperson Juan Sebastián Roldán.
Ecuador offers both a positive and cautionary example for other countries in Latin America and around the world that have increased media control and censorship in recent years. There is a path back to press freedom, and sustained international pressure can be meaningful. At the same time, it is difficult to overstate the damage that a powerful executive branch determined to destroy independent media can inflict on a country.
Ecuador’s journalists are exhausted and wary, and many young would-be reporters have been frightened away from the field after witnessing the decade-long battle with Correa, according to members of the UNP and journalists who have watched their newsrooms age. But the Moreno government’s willingness to engage with and listen to reporters and press freedom advocates is changing the tone of conversations about the media. While Ecuador’s journalists were devastated by murders of their colleagues, they were buoyed by the response of their fellow citizens, who took to the streets to express their indignation. The road to rebuilding a free and independent press in Ecuador will be a long one, but journalists say they are willing to put in the work necessary to get the job done. They simply want to know whether the government is willing to do the same.
Southwick is CPJ’s South and Central Americas program coordinator. Prior to joining CPJ, Southwick was a member of Witness for Peace’s international accompaniment team in Bogotá, a reporting specialist with ACDI/VOCA’s Afro-Colombian and Indigenous program, and the editor of a website focused on Latin American news. Otis, CPJ’s Andes correspondent, is based in Bogotá, and works as a correspondent for Time magazine, NPR, and The Wall Street Journal.
Main Image: Lenín Moreno speaks to the media after attending an event with members of indigenous communities and supporters in Quito in February 2017. Since he was elected president, Moreno has pledged to reform Ecuador’s Communications Law. (Reuters/Henry Romero)