A/HRC/41/35/Add.1
human rights standards. Similarly, speech attacking a person’s honour is still penalized
under the Code. The Special Rapporteurs emphasize that the provisions contained in these
articles of the Code are extremely onerous with respect to the exercise of freedom of
expression.
26.
Article 182 criminalizes slander, defined as the conduct of someone who, by any
means, falsely accuses another of a crime, with a penalty ranging from six months to two
years of imprisonment. The Special Rapporteurs note that this provision does not meet the
requirement of necessity, namely, that it be the option that least restricts the protected right.
By excluding evidence of the veracity of claims in cases where a final decision has already
been rendered by the criminal justice system, the rule establishes a radical and excessive
limitation on the right to freedom of expression in the protection of the right to honour. It is
tantamount to an absolute prohibition on referring to certain facts and persons in cases
where there is a final judgment of dismissal, which is incompatible with the principles of a
democratic system, especially in the case of public officials or those who aspire to be public
officials.
27.
Article 396, in turn, provides for imprisonment of 15 to 30 days to be imposed on
anyone who, by any means, engages in speech that discredits or dishonours someone else.
This provision is extremely vague and ambiguous, and therefore has an undeniable
discouraging and inhibiting effect on speech. The Special Rapporteurs further observe that
the Code contains other problematic offences, such as those established in articles 307 and
322, which provide for penalties of five to seven years of imprisonment for anyone who
disseminates false information that results in economic or financial panic. Provisions such
as these are bound to have a chilling effect on those commenting on the economy or
financial affairs, such as journalists, media outlets and academics.
28.
The Special Rapporteurs therefore urge the State to repeal these provisions and
adopt relevant provisions in accordance with international human rights law. By deterring
speech and the transmission of information, the existing law affects not only journalists and
others, but also the amount of information the public is able to receive.
B.
Promoting independent journalism
29.
The 2013 Organic Law on Communications severely eroded media independence, as
did governmental pressures on journalists and reporters under the previous Administration.
Self-censorship and apprehension surrounding investigative reporting persists among
members of the press, as they continue to fear persecution under the Law, despite its legal
and technical reform.
30.
The practices of the previous Government have left behind a legacy of public
distrust of journalists, and have cast doubt on the existence of a free and independent press.
The case of journalist Emilio Palacio and the directors of the newspaper El Universo is one
of the most emblematic cases of the use of criminal law during the past decade to prosecute
and impose example-setting penalties against journalists and columnists. The cases of
Fernando Villavicencio and Freddy Aponte are also paradigmatic. While the Government
has made efforts towards change, the Special Rapporteurs were informed that a culture in
which the role of journalism in a democratic society is not fully understood remains in
Ecuador. The Special Rapporteurs are concerned that, as a result of inadequate support for
media training in higher education, there is low media literacy and inconsistent application
of professional standards. According to information received, journalists in Ecuador still
experience low standards of living and the social protections they enjoy are limited.
31.
Finally, journalists and media outlets themselves play a critical role in promoting
independent journalism and a healthy profession. Despite frustrations with reporting,
journalists in Ecuador have not developed a standardized code of professional ethics, or a
self-regulatory media accountability and fact-checking system. Restoring public trust in the
press and the promotion of independent journalism will require a collective effort from the
Government, journalists and the people of Ecuador as a whole.
7
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