During the Rafael Correa government, pressure measures against the media took different forms. Beyond the approval of the Communication Law, known as the 'gag law', and the public scorn of newspapers and journalists during national networks, known as “Sabatinas”, the judiciary was also in charge of restricting the right to freedom expression. In 2012, the Twenty-First Civil Judge of Pichincha - and successively the Criminal Guarantees Chamber of the Provincial Court of Pichincha - granted a protection action in favor of the public administration, in particular the Executive Function and the National Government, in Against the newspaper La Hora and Editorial Minotauro SA The Constitutional Court of Ecuador, in adherence to international standards, on September 4, 2019 reversed this sentence, marking an important step towards the full validity of the right to freedom of expression in Ecuador .
The protection action presented by the Oscar Alejandro Pico Solórzano alleged an alleged violation of the State's constitutional rights because of a note published by the newspaper related to the expenses in official advertising made by the Government. According to the text, which was based on data from the Citizen Participation Corporation, the Government would have spent 71 million on propaganda. Pico requested a correction on the assumption that the data presented was inflated by 736,37%. Despite the fact that the newspaper published the reply, Pico filed a protective action against the medium.
In the decisions of the court of first instance and appeal, it was determined that the media violated the right to accurate information and rectification to the detriment of the State. Furthermore, he referred to the State as the holder of the right to honor. As a measure of reparation, the media was ordered to publish public apologies and the judicial rectification of the news.
The sentence of the Constitutional Court It not only reverses a sentence that meant a prejudicial precedent for the work of the media when publishing information on the government's efforts, but also delves into the legal analysis of important issues that have significant implications regarding the right to freedom of expression, the work of the media and the state's ability to hinder journalistic work.
In the first place, the sentence establishes a limit to the ownership of the right to honor of public institutions, making it clear that attributing rights that are inherent to human dignity to state entities means distorting the concept of fundamental right recognized in the Constitution of Ecuador. The Court considers that, although the State administration has the capacity to exercise procedural content rights, it does not have fundamental rights linked to human dignity. Therefore, the State at the institutional level cannot be considered as the holder of the right to honor, truthful information and rectification. This implies that the State and its institutions cannot limit the right to freedom of expression of individuals or the media on the grounds of preserving their honor and dignity.
Furthermore, the judgment incorporates international standards on freedom of expression into constitutional jurisprudence, a significant step that allows observing in practice the application of international treaties in national decisions. Especially positive is the application of the proportionality test to analyze the legitimate restrictions - or less - on freedom of expression. Consequently, the constitutional precedent will call Ecuadorian judges to ensure that the restriction on the right to freedom of expression is contained in a law, and that this restriction pursues a legitimate purpose, is appropriate, necessary, and strictly proportional.
Likewise, the judgment establishes a clear distinction between content produced by the media and the reproduction of content created by third parties. In this sense, it incorporates into the constitutional jurisprudence the standards of faithful reporting and real malice. In other words, the judicial authorities must consider that the reproduction of information published by third parties cannot be subjected to truthfulness or falsehood judgments, unless it has been done with the intention of causing harm and knowing about its falsity.
Finally, it is worth highlighting the distinction made between rectification and reply, since the first is aimed at correcting false information, while the second is aimed at inaccurate or offensive information. No rectification of news that is a faithful report of information disseminated by third parties can be requested. Furthermore, the judgment is emphatic in pointing out that, even if these two mechanisms exist, opinions cannot be subject to truthfulness or falsehood judgments. Likewise, both alternatives must comply with the requirement of legality, necessity and proportionality.
The decision of the Constitutional Court is a clear victory for the media, not only those affected in the specific case, but at the national level. The ruling allows for the inclusion of international standards and the return to society of its ability to inform and express itself without state interference. This precedent returns the role that the right to freedom of expression and the media have in democratic societies.
Martina Rapido Ragozzino
Twitter @MartinaRapidoR
