Case Summary and Outcome

The Constitutional Court of Ecuador dismissed a constitutional protection action filed by a public official against a newspaper to obtain a court-ordered rectification. The case arose after newspaper La Hora published an article reporting on government spending on official advertising, based on information collected by an NGO. In response, the National Undersecretary of Public Administration demanded a “rectification,” arguing the information published was inaccurate. Dissatisfied with the subsequent newspaper’s reply, the public official filed a constitutional protection action. The Constitutional Court held that judicial orders compelling the newspaper La Hora to publish a rectification and a public apology unlawfully restricted freedom of expression. It stressed that faithful reporting of third-party data without adding subjective statements leaves no basis for a compelled rectification.

Facts

The plaintiff was Óscar Alejandro Pico Solórzano, then National Undersecretary of Public Administration of Ecuador. The defendants were Editorial Minotauro S.A. and the newspaper La Hora.

On October 10, 2012, newspaper La Hora published an article titled “2012: 71 millones en publicidad oficial” (2012: 71 million in official advertising). The article referred to the national government’s spending on official advertising, according to information reported by the NGO Corporación Participación Ciudadana (CPC).

On October 11, 2012, the National Undersecretary of Public Administration sent Official Letter No. PR‑SSADP‑2012‑001513‑O to La Hora, demanding a “rectification of the inaccurate information published.” [para. 9] The letter asserted that CPC’s numbers were exorbitant and unreliable, enclosed the real figures the newspaper should have contrasted prior to publication, and concluded that the article’s sole source was “neither objective nor reliable, much less verified.” [para. 9] On October 13, 2012, La Hora published a new article (“Réplica” —Reply in English), reproducing the National Undersecretary’s position and noting that the October 10 article had reported CPC’s data.

On October 31, 2012, the National Undersecretary filed a constitutional protection action (acción de protección) against Editorial Minotauro S.A. and La Hora, alleging that: a) the reply occupied less space; b) it appeared under the heading “Reply” instead of “Rectification,” and c) it referred to only one of the figures appearing in the original publication. The defendants argued that the action lacked a legal basis and that, in the case of rectifications, the proper remedy was a habeas data action. They added that the October 13 publication could not be treated as a “rectification,” because the original article faithfully reproduced CPC’s data, and La Hora had published the government’s response as a reply.

On November 12, 2012, the Twenty‑First Civil Judge of Pichincha (Juez Vigésimo Primero de lo Civil de Pichincha) granted the action. It declared that the October 10 article violated the right to truthful information of the Ecuadorian State and of the citizenry, and that the October 13 publication violated the same parties’ right to rectification. Consequently, the judge ordered La Hora to publish Official Letter No. PR‑SSADP‑2012‑001513‑O in full alongside an apology to the Ecuadorian State. On November 14, 2012, La Hora complied with the ruling.

The same day, La Hora filed a motion seeking clarification of the evidence underlying the judge’s determination that the October 10 article was inaccurate, which was denied. On January 12, 2013, the First Criminal Chamber of the Provincial Court of Justice of Pichincha (Primera Sala de Garantías Penales de la Corte Provincial de Pichincha) upheld the first-instance decision.

On June 25, 2014, the Constitutional Court selected the case for review.

Decision Overview

Justice Daniela Salazar Marín delivered the judgment for the Constitutional Court of Ecuador, which adopted the decision unanimously. The main issue before the Court was whether the judicial orders compelling La Hora to publish a rectification—regarding an article that reproduced information from an NGO—and a public apology constituted an unlawful restriction on its right to freedom of expression.

Before analyzing the right to freedom of expression, the Constitutional Court addressed two threshold points. First, it reiterated that the State is not a holder of fundamental rights—such as honor, information, or rectification—because these stem from human dignity as a principle. Second, the Court clarified that constitutional protection actions brought by public institutions against private parties distort the purpose of the constitutional remedy and are therefore inadmissible.

The Constitutional Court then proceeded to analyze the information published by the newspaper La Hora. The Court’s first consideration concerned the nature of the speech at issue. It underscored that media outlets are vehicles for public debate and government oversight. Accordingly, the Court stressed that any obstruction of press freedom impairs the social dimension of the right to freedom of expression.

Additionally, the Constitutional Court reaffirmed that freedom of expression protects even speeches that “offend, shock, or disturb,” and reiterated the general presumption of protection in favor of all forms of expression, which excludes prohibited categories. [para. 62-63] It further held that public interest speech merits heightened protection because it enables scrutiny of state actions. Applying that principle, the Court found that La Hora’s reporting on official advertising expenditures constituted public interest information entitled to special protection.

Afterwards, the Constitutional Court analyzed the relationship between the right to freedom of expression and the right to rectification or reply. It noted that this right complements freedom of expression, inasmuch as it constitutes the least burdensome measure for redressing possible damages. It distinguished rectification—which applies when published information is false or erroneous—from reply—which allows those who feel aggrieved to respond.

Furthermore, the Constitutional Court held that the fact that information that does not meet the criteria of “truthfulness, timeliness, or impartiality” is published does not exclude it from the protection granted by the right to freedom of expression, nor does it enable prior censorship. In this regard, the Court noted that “the duty of the media is to act with due diligence, that is, to make reasonable efforts to verify and contrast information before publishing it.” [para. 79] According to the Court, the consequence of this is that the media cannot be held liable for reproducing information from third parties with a clear attribution of the source and without adding their own assessments (“faithful-reporting” doctrine), unless “actual malice” is proven. [paras. 80-81]

In this specific case, the Constitutional Court concluded that the information published in the October 10 article was a faithful report of information previously disseminated by the CPC, which should not be subjected to a judgment of veracity or falsehood. It held that the October 13 publication (the reply) constituted a “sufficient mechanism” to guarantee the right to information of the citizenry. [paras. 83-85] The Court explained that the newspaper La Hora was not obliged to present the information published at the request of the National Undersecretary as a rectification, given that it had not been proven that the CPC had disseminated inaccurate information.

In addition, the Constitutional Court determined that the fact that the October 13 publication did not meet the National Undersecretary’s expectations in terms of title, length, or size did not entail that the newspaper failed to fulfill its obligation to provide space for a response. It added that the plaintiff had the opportunity to provide its version of the facts in the same newspaper and in the same section in which the original news item had been published.

Subsequently, the Constitutional Court conducted a strict proportionality test of the restrictions imposed on the newspaper by the lower courts. It concluded that the judicial decisions aimed at protecting the rights to rectification, information, and honor had not pursued any legitimate objective, and that there was no justification for the restrictions imposed on the right to freedom of expression. The Court found that the protection action brought by the National Undersecretary risked a chilling effect on other media outlets and on society in general, which was particularly grave, given that it concerned the dissemination of public interest information.

Finally, the Constitutional Court overturned the decision of the Provincial Court of Pichincha, dismissed the protection action, and declared that the first-instance and second-instance decisions unlawfully restricted the freedom of expression of the newspaper La Hora and Editorial Minotauro S.A.