In this interview, former Judge Daniela Salazar Marín reflects on how Ecuador’s Constitutional Court transformed the protection of freedom of expression, integrating international standards with a steadfast commitment to people’s rights. 

Anderson Javiel Dirocie De León, Senior Legal and Policy Consultant at CGFoE, recently interviewed former Judge Daniela Salazar Marín, who provided unique insights into the trends and transformative developments of the Ecuadorian Constitutional Court’s jurisprudence on freedom of expression, several of them authored by her.

“Daniela Salazar Marín’s reflections highlight not only the incorporation of international standards into constitutional adjudication, but also the humility and commitment of a jurist who served with integrity and dedication to the protection of fundamental rights,” said Anderson Javiel Dirocie De León. “Her testimony complements and enriches the case analyses we have newly added to the Database, offering a comprehensive perspective on the potential impact of Ecuadorian jurisprudence in the region.”

Daniela Salazar Marín is an expert in international human rights law, constitutional law, and the role of judges; the criminalization of social protest; freedom of expression on the internet; the rights of migrants and refugees; and the rights of indigenous peoples. Between 2019 and 2022, Salazar Marín served as Vice President of the Constitutional Court of Ecuador; having played a pivotal role in shaping legal standards that safeguard fundamental rights, she concluded her tenure as Judge on the Court earlier this year. Currently, Salazar Marín is an Associate Professor at San Francisco de Quito University (USFQ), Ecuador. 

You can find the interview in the original Spanish here. 

Anderson Javiel Dirocie De León: During your tenure as Judge and Vice-President of the Constitutional Court, the Court issued several landmark rulings on freedom of expression. How do you characterize the Court’s general approach to freedom of expression under your watch?

Daniela Salazar Marín: A common feature of the Constitutional Court’s rulings on freedom of expression issued since 2019 is the application of international standards on freedom of expression to resolve specific cases and develop the content and limits of this right. Invoking international standards is not a matter of chance; it is not that the Court seeks to legitimize itself in this way, nor is it due to the personal preferences of its judges. On the contrary, it is the natural consequence of the receptivity of the Ecuadorian Constitution itself to international human rights law.

The 2008 Constitution invokes international treaties and instruments dozens of times as a source of rights. By mandate of the Constitution itself, human rights treaties and instruments are incorporated into the constitutional framework, enjoy a privileged hierarchy, and are directly applicable by and before any judge or public authority. According to our Constitution, if the norms contained in a human rights treaty are more favorable than those enshrined in the Constitution, by virtue of the pro homine principle, they apply even above the Constitution itself. Hence, in Ecuador, individuals have double protection of their rights, both at the constitutional and international levels. This justifies the Constitutional Court’s frequent invocation of international treaties and the jurisprudence of the bodies created by those treaties in order to achieve better protection of rights, including the right to freedom of expression.

In the Diario La Hora case (Sentencia No. 282-13-JP/19), the Court, under your authorship, addressed the boundaries between state institutions and the media. Could you elaborate on the significance of this ruling and its implications for the principle of transparency versus the state’s right to reply?

At the risk of oversimplifying the Diario La Hora case, I will begin by briefly explaining the issue that the Court had to resolve. A civil society organization monitored how much public money the government had spent on advertising or official propaganda and presented the figures to the press. Diario La Hora published a report, clearly stating that the figures had been obtained by that organization based on its own monitoring. The government sent Diario La Hora an official letter stating that the published figures were false because the government had benefited from certain discounts. Although the government did not provide any evidence of such discounts, it did provide Diario La Hora with figures on public spending on advertising that differed from those calculated by the NGO. Given this information, Diario La Hora published the government’s response or rebuttal, just as it had published the NGO’s figures. 

Dissatisfied, the government turned to the constitutional jurisdiction to protect its rights, and in fact won in the first and second instances. The judges who initially heard the case protected the government’s rights to honor, accurate information, and rectification, forcing Diario La Hora to publish a correction and apologize publicly. 

The Court selected the case and issued a ruling overturning the previous decisions and protecting Diario La Hora’s right to freedom of expression. In doing so, the Court determined that the publication was in the public interest, as it addressed issues relating to the spending of the state budget. Since the publication was in the public interest, it constituted specially protected speech, which requires a higher threshold of tolerance on the part of government authorities. The ruling emphasized that the State is obliged to allow public administration to be subject to public scrutiny and to protect the role of the media as vehicles through which discussion of matters of public interest is promoted and government administration is monitored. 

In addition, the Court determined the content of the right to rectification and its relationship to the right to freedom of expression and ruled that the original information published by Diario La Hora did not constitute information subject to rectification, as it was not false or erroneous information but rather the publication merely reproduced statements or information issued by third parties, citing its source. The Court affirmed that the State should refrain from any intervention aimed at limiting the exercise of freedom of expression, especially when it comes to issues such as public spending, which should be completely transparent. Furthermore, it reasoned that the government had other means to publicly challenge and respond to information it considered inaccurate, without resorting to unnecessary restrictions on freedom of expression, such as in this case, rectification by court order. Thus, the Court clarified that rectification cannot be used abusively by state entities to generate an inhibiting effect or self-censorship in the media, or as a mechanism to impose content on them. 

In short, the ruling clarifies that information on public spending should be guided by the principle of transparency, and if it is not available transparently to everyone, the government must respect the freedom of different civil society actors to disseminate information that allows society to scrutinize public management. In the Court’s reasoning, the right to freedom of expression includes the government’s obligation to refrain from resorting to constitutional justice to impose content on the media based on the right of rectification.

The Redes Sociales Instituciones Públicas case (Sentencia No. 2032-20-JP/25) addressed state censorship through blocking users on official social media pages. What were the key principles the Court established regarding digital spaces as public forums, and how do they align with international standards?

In this ruling, the Court resolved a case arising from an action for protection brought by a citizen against a municipal government because the public entity’s institutional page on the social network Facebook, through which official information about the activities of the mayor and other local authorities was reported, had restricted his ability to comment on posts. Naturally, there is no absolute prohibition on moderating content; on the contrary, public institutions are obliged to intervene in specific cases that exceed the limits of freedom of expression. However, in this particular case, there was no evidence that the plaintiff’s comments on the Mayor’s official account had infringed these limits. Nor was any particular comment moderated; rather, the user was completely and permanently prevented from posting comments on the Facebook account used institutionally by the municipal government. 

The Constitutional Court determined that blocking a user or restricting comments on the institutional page of a public entity constitutes, prima facie, an undue limitation on the right to freedom of expression. It clarified that, in order to respect the right to freedom of expression, any action by public institutions to block, restrict interaction, or filter content must meet certain minimum criteria, namely: i) pursue a constitutionally legitimate purpose; ii) be clear and previously defined; iii) be transparent with respect to the sites, users, and content blocked; iv) be suitable, necessary, and proportional to achieve the legitimate objective; and v) guarantee administrative and judicial mechanisms to review the decisions made. In this specific case, safeguarding the image or prestige of the mayor as an elected official does not constitute a legitimate purpose for preventing users from posting comments and participating in the virtual space created by the mayor’s office itself. Nor were the criteria for blocking clearly and previously defined. And the total and permanent impediment to posting comments did not pass the proportionality test.

The Court recognized that social media is no longer exclusively a space for leisure and entertainment, but has come to play an important role in facilitating and enhancing the dissemination of content relevant to society and public debate on matters of general interest. If a public institution creates an official account, that space becomes a place where the institution is obliged to respect and guarantee rights, such as the prohibition of discrimination, or freedom of expression and information. 

The principle guiding the Court’s reasoning is that the possibility of participating in public debate on matters of social interest is essential for accountability in public management, and social media are not exempt from obligations regarding freedom of expression. On the contrary, the digital world must be understood as an extension of traditional public spaces. Hence, digital media, like traditional media, are a key tool for participatory democracy. Excluding citizens from virtual participation spaces managed by public authorities, where matters of general interest are discussed, is contrary to the principle of transparency that should guide public institutions. 

The Court’s decision on access to vaccination information during the COVID-19 pandemic (Sentencia No. 29-21-JI y acumulado/21) addressed the tension between public interest and data privacy. How did the Court strike this balance, and what challenges did this pose from a freedom of expression and transparency perspective?

This was undoubtedly a very complex case. The Court ruled on two actions for access to public information brought by the Ombudsman’s Office against the Ministry of Public Health, in which the Ombudsman’s Office requested access to information on the number of vaccines available in the country, the list of people who had been vaccinated, and the vaccination protocol. This was at a time when COVID-19 vaccines were in very short supply in the country and the government itself had decided that the first doses of vaccines should go to frontline workers and older adults in public nursing homes and their caregivers. However, there was information suggesting that there were “VIP vaccinees,” that is, people close to the government who had access to vaccination before frontline workers or older adults, which led to requests for access to public information.

The Ministry of Public Health maintained that it could not disclose the information because it was confidential. It argued that its duty was to protect the right of vaccinated individuals to their personal information, especially when they were considered patients. The line between personal information and public information was very blurred, particularly because it was necessary to know the names of the people who had received the vaccine.

To resolve this tension between private data and information of public interest, the Court started from the premise that the entire vaccine management process, from acquisition, purchase, transport, storage, and inoculation, must be carried out within a rigorous, transparent, and participatory formulation and execution of public health policy. Our Constitution guarantees the participation of individuals in public policy, and a fundamental condition for exercising the right to participate in public policy is transparency in public administration. Transparency provides the information necessary to form an informed opinion and participate. Publicity, access to information, and citizen participation strengthen democracy, guarantee transparency and good public management, and prevent corruption through the oversight of public administration and resources.

Under the principle of publicity, information held by any public servant, at any level, is, as a general rule, public and must be available and easily accessible to anyone, at any time, through mechanisms such as the website of the public institutions that hold the information. However, the Court recognized that classified and confidential information are exceptions to this rule. Since the government claimed that the information was confidential, the Court scrutinized the information that had been requested. With regard to the information on the number of vaccines that arrived in Ecuador and the number of vaccines purchased against COVID-19, the Court determined that it was not confidential information. As for the vaccination protocol, the Court also noted that it did not in any way compromise information related to the privacy or intimacy of any person. However, the most sensitive information was that relating to the list of people who had received the vaccines, including their first and last names and other data to determine whether they were health personnel or older adults. 

In this regard, the Court recognized that clinical data, as sensitive data concerning intimate aspects of a person, such as their health, is protected by the principle of confidentiality and cannot be disclosed. However, vaccines are administered to healthy people and are immunisation measures aimed at preventing disease. From this perspective, people who received vaccines are not patients but beneficiaries of a public health policy. Therefore, vaccinated individuals, in accordance with the public preventive health policy, should not be considered patients, nor should information about their vaccination constitute clinical data. The Court considered that the names of the beneficiaries were necessary to determine, specifically, whether the vaccines were intended for older adults and frontline personnel who were at high risk of exposure to the virus. 

In the Court’s opinion, knowing how the vaccination plan was being implemented and identifying the people who were vaccinated was also a matter of public interest that would make it possible to determine whether there were arbitrary criteria in the administration of vaccines, whether certain people were given preferential treatment, or whether people who required this protection were omitted from vaccination. In this regard, given the context of the case, the Court determined that this was information that should be made public and scrutinized, and that the Ministry should disclose the information. Transparency, as a principle guiding access to information, once again prevailed over other rights at stake.

You’ve highlighted in public fora the risks of criminalizing social protest. How has the jurisprudence of the Court during your tenure responded to this concern, particularly in cases involving the regulation of political expression or protest during electoral periods?

I would highlight here the rulings of the Court in reviewing the constitutionality of states of emergency. During the six years I served as a judge, the Constitutional Court had to deal with three different governments, all of which routinely, and sometimes even arbitrarily, resorted to states of emergency, which in my country are no longer exceptional but have become commonplace. In fact, on several occasions, states of emergency have been in force during election periods. Several of these decrees were aimed at establishing limitations on freedom of movement and the right of assembly, in order to prevent people from exercising their right to protest. They also sought to allow the Armed Forces to be responsible for safeguarding public security at times of high tension and social protest. 

Perhaps the most significant ruling on this issue was that issued by the Court in the context of the violent social protests that took place over several weeks in October 2019. On that occasion, a state of emergency decree was issued, mobilizing the entire national territory so that the Armed Forces and the National Police could coordinate efforts to maintain order and prevent violent incidents. In its ruling, the Court clearly stated that both the National Police and the Armed Forces, which could only act in a complementary manner, must respect the right of citizens to demonstrate peacefully. The Court recognized that the suspension of the right to freedom of assembly and the restriction of freedom of movement were measures intended to protect the rights of persons affected by the violence generated by demonstrations in certain parts of the country. However, it established that the right of assembly could only be limited on the basis of the constitutionally legitimate objective established by the state of emergency, namely to prevent acts that jeopardize the safety and integrity of citizens. Therefore, according to the Court’s ruling, no measure in the decree could be interpreted as limiting the legitimate right of citizens to peaceful protest.

Along the same lines, when reviewing the states of emergency that were decreed to contain the prison crisis, which provided for the mobilization of law enforcement to detention centers, the Court recalled the Inter-American standards regarding the extreme care that States must observe when using the Armed Forces as a means of controlling social protest, internal disturbances, internal violence, exceptional situations, and common crime, given that the training received by the Armed Forces is aimed at defeating the enemy, and not at protecting and controlling civilians, which is the training received by police forces. 

Similarly, in conducting its constitutional review of the states of emergency that were declared to control the increase in violence and criminal activity in the country, the Court reiterated that the mobilization of the Armed Forces should be restricted to operations in which they perform functions that are exclusively complementary to those of the National Police and directed toward the purposes established in the state of emergency decree, respecting the right of citizens to social protest. 

In a certain case that took place in the context of the pandemic, the circumstances even led me to cast a dissenting vote, together with Judge Ávila and Judge Andrade, warning that in the context of the declaration of the state of emergency, days of citizen protests had been announced for various causes, and that during the execution of the state of emergency, before the Court issued its ruling, the Armed Forces had been present at the various locations of public demonstrations. On that occasion, those of us who dissented considered that the Court should have declared the state of emergency unconstitutional, among other reasons, because acts of protest should in no way be confused with problems of public insecurity or common crime, and we did not agree with the use of exceptional powers to intimidate, repress, or manage social unrest.

Many of the decisions issued under your authorship—such as Redes Sociales, La Hora, and others—apply proportionality and legality tests that resemble those of international courts. What has been your inspiration or framework for incorporating international human rights law in Ecuador’s constitutional jurisprudence?

One might think that the Constitutional Court’s frequent invocation of proportionality as a method for resolving cases is due to the influence of judges like myself, who have training in human rights or professional experience in the Inter-American human rights system. However, I cannot take credit for this type of judicial reasoning because, in fact, it is the law itself that requires the Court to resort to proportionality as a method for resolving conflicts between rights. 

Article 3 of the Organic Law on Jurisdictional Guarantees and Constitutional Control establishes the methods and rules of constitutional interpretation and expressly states that when there are contradictions between principles or norms, and it is not possible to resolve them through the rules for resolving antinomies, the principle of proportionality shall be applied, verifying that the measure in question protects a constitutionally valid purpose, that it is suitable and necessary to guarantee it, and that there is a proper balance between protection and constitutional restriction. It adds that one of these methods is weighing, and that a relationship of preference between principles and norms must be established, conditioned by the circumstances of the specific case, in order to determine the appropriate decision. According to the law, the greater the degree of non-satisfaction or impairment of a right or principle, the greater the importance of satisfying the other.

I imagine that people from other countries will find the level of detail in our legislation regarding the Court’s methodology of interpretation and reasoning curious, but I think it is important to recognize that this is not a personal preference but a legal mandate. The way in which the Court assesses proportionality in each case is indeed the result of the criteria of the judges who make up the Court, but the fact that the Court uses this method is a matter established by law. 

Looking back, what do you see as the most novel or transformative element in the Court’s jurisprudence on freedom of expression developed during your tenure?

As a novel element, I could refer to the jurisprudential development of the right to truth in the context of a case concerning the death of a former commander general of the Ecuadorian Air Force who had reported irregularities and corruption in the purchase of helicopters and weapons by the Ecuadorian State. However, if I had to mention a truly transformative criterion, I must acknowledge that the Court had to transform all constitutional jurisprudence on freedom of expression, which, between 2008 and 2018, had been aimed at protecting the government and had failed to fulfill its obligation to protect the constant violations of this right during the Rafael Correa regime. 

The case of Diario La Hora, with which this interview began, is not only important because of the standards on the right of reply. This case broke with previous constitutional jurisprudence by determining a very basic issue: that the holders of rights are individuals and not the state. When I described the facts of the La Hora case in this interview, I mentioned that the constitutional rulings that had been issued in that case had protected the government’s right to honor, rectification, and others. This was not an isolated issue; constitutional justice was constantly used as a tool by the government to legitimize violations of fundamental rights. 

Beyond overturning previous rulings, the Court set a milestone by establishing something extremely fundamental: that the State, as well as the public institutions and legal entities that comprise it, are not holders of rights inherent to dignity and therefore are not holders of rights such as honor. The Court put a stop to the State’s use of justice as a mechanism for its own protection and established that protective actions brought by public institutions with the aim of protecting their own constitutional rights inherent to human dignity were inadmissible. I understand that at the international level this may not sound particularly novel, but in the context of Ecuador, where for a decade constitutional justice failed in its duty to protect individuals from the excesses of an authoritarian government, this jurisprudential criterion was totally transformative and defined a new stage in constitutional jurisprudence. 

As you transition from the bench, what legal or institutional reforms do you believe are most urgent to consolidate the advances made in freedom of expression and democratic accountability in Ecuador?

I believe it is essential that both regulatory and jurisprudential frameworks take into account certain new practices that challenge the protections we have established for freedom of expression. For example, I have mentioned in this interview that protections for the right to freedom of expression must be guaranteed both in the traditional sphere and in the digital world. However, in Ecuador today, it is possible to identify dozens of social media accounts that pose as media outlets but are nothing more than state propaganda machines or, worse still, government-sponsored disinformation. How do we adjust current standards to prevent these abuses? Similarly, certain journalists are allegedly receiving funding to stop exercising their role of seeking the truth or serving as vehicles of information and opinion, and instead devote themselves to spreading official propaganda or campaigns of disinformation and delegitimization. Do they deserve the same protection as those who are not funded by those in power? Recently, in Ecuador, a massive march was organized by the president himself against the Constitutional Court. Hundreds of public officials were forced to march, imposing a certain message on them. What kind of reaction does this type of practice deserve? Through discrediting campaigns on social media and marches sponsored by the government itself, the Constitutional Court has been attacked for being the only body that has placed limits on power. If we want to consolidate the jurisprudential advances achieved in the protection of rights, including the right to freedom of expression, we should start by protecting the institutions whose function is to protect rights. If we allow governments to intimidate the institutions created to protect us, if we challenge democratic principles, the separation of powers, or judicial independence, we will once again have a president ruling without checks and balances. By then, it will be too late.