Landmark Ruling by Ecuador's Constitutional Court

During Rafael Correa’s administration, efforts to exert pressure on the media took various forms. Beyond the passage of the Communications Law—known as the “gag law”—and public ridicule

During Rafael Correa’s administration, measures to exert pressure on the media took various forms. Beyond the passage of the Communications Law—known as the “gag law”—and the public ridicule of newspapers and journalists during national broadcasts known as “Sabatinas,” the judiciary also took steps to restrict the right to freedom of expression. In 2012, the 21st Civil Judge of Pichincha—and subsequently the Criminal Guarantees Chamber of the Provincial Court of Pichincha—granted an injunction in favor of the public administration, specifically the Executive Branch and the National Government, against the newspaper La Hora and Editorial Minotauro S.A. On September 4, 2019, the Constitutional Court of Ecuador, in accordance with international standards, overturned this ruling, marking an important step toward the full realization of the right to freedom of expression in Ecuador. The injunction filed by Oscar Alejandro Pico Solórzano alleged a supposed violation of the State’s constitutional rights due to an article published by the newspaper regarding the government’s spending on official advertising. According to the article, which was based on data from the Corporación Participación Ciudadana, the government had reportedly spent 71 million on propaganda. Pico requested a correction on the grounds that the data presented was inflated by 736.37%. Although the newspaper published the rebuttal, Pico filed a protective action against the media outlet. The decisions of the trial court and the appellate court determined that the media outlet violated the right to accurate information and to a correction to the detriment of the State. Furthermore, the court referred to the State as the holder of the right to reputation. As a measure of redress, the media outlet was ordered to publish a public apology and a judicial correction of the news article. The Constitutional Court’s ruling not only overturns a ruling that set a harmful precedent for the media’s work when publishing information about government actions, but also delves into the legal analysis of important issues that have significant implications for the right to freedom of expression, the work of the media, and the state’s ability to hinder journalistic work. First, the ruling sets a limit on the entitlement of public institutions to the right to honor, making it clear that attributing rights inherent to human dignity to state entities constitutes a distortion of the concept of a fundamental right recognized in the Constitution of Ecuador. The Court considers that, while the State administration has the capacity to exercise procedural rights, it does not possess fundamental rights linked to human dignity. Therefore, the State at the institutional level cannot be considered the holder of the right to honor, to accurate information, and to 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 ruling incorporates international standards on freedom of expression into constitutional jurisprudence—a significant step that allows for the practical application of international treaties in national decisions. Particularly positive is the application of the proportionality test to analyze legitimate—or otherwise—restrictions on freedom of expression. Consequently, this constitutional precedent will require Ecuadorian judges to ensure that any restriction on the right to freedom of expression is enshrined in law and that such a restriction pursues a legitimate purpose, is appropriate, necessary, and strictly proportional. Furthermore, the ruling establishes a clear distinction between content produced by the media and the reproduction of content created by third parties. In this regard, it incorporates the standards of fair reporting and actual malice into constitutional jurisprudence. In other words, judicial authorities must consider that the reproduction of information published by third parties cannot be subject to judgments of truth or falsehood, unless it was done with the intent to cause harm and with knowledge of its falsity. Finally, it is worth noting the distinction made between rectification and reply, since the former is intended to correct false information, while the latter addresses inaccurate or offensive information. Rectification cannot be requested for news reports that are a fair account of information disseminated by third parties. Furthermore, the ruling emphatically states that, even with these two mechanisms in place, opinions cannot be subject to judgments of truth or falsehood. Likewise, both alternatives must comply with the requirements of legality, necessity, and proportionality. The Constitutional Court’s decision is a clear victory for the media, not only for those affected in this specific case but also on a national level. The ruling allows for the incorporation of international standards and restores society’s ability to obtain information and express itself without state interference. This precedent restores the role that the right to freedom of expression and the media play in democratic societies. Martina Rapido Ragozzino Twitter @MartinaRapidoR