Case Summary and Outcome

On June 29, 2020, the Constitutional Court of Ecuador rendered an opinion on the constitutionality of the Decree No. 1074 signed by the President regarding the extension of the state of emergency during the COVID-19 pandemic. The Court, which upheld the Decree that provided for the mobilization of the Armed Forces and National Police to reestablish “public order” and the suspension and limitation of the rights of freedom of movement, assembly and association, decided to include in its judgement additional considerations in relation to the right of freedom of expression in the context of the pandemic. Mainly, that the Government must develop measures to close the digital divide facing vulnerable and low-income groups and ensure the broadest possible access to information related to the public health emergency.

Facts

On June 16, 2020, the President of the Republic, Lenín Moreno Garcés, forwarded to the Constitutional Court a certified copy of Executive Decree No. 1074 of June 15, 2020 regarding the “state of exception for public calamity throughout the national territory, due to the presence of COVID-19 in Ecuador and due to the economic emergency produced by the sanitary emergency that the Ecuadorian State is going through.”

The competence to address the constitutionality of the states of exception corresponds to the Constitutional Court of Ecuador in accordance with articles 166 and 436 no. 8 of the Constitution and in accordance with letter e) of number 3 of article 75 and articles 119 to 125 of the Organic Law of Jurisdictional Guarantees and Constitutional Control.

Decision Overview

Judge Herrería Bonnet delivered the judgement of the Constitutional Court of Ecuador.

The main issue before the Court was the constitutionality of Decree 1074, which prescribes the mobilization, among other National entities, of the Armed Forces and the National Police with the objective of reestablishing “public order.” It also provides for the suspension and limitation of the rights to freedom of movement, as well as freedom of assembly and association, by means of isolation and social distancing. The Constitutional Court specified that the suspensions and limitations that may apply must respect the work of the media (para. 120,f; 151.a.v).

After the Court decided to uphold the constitutionality of these measures, it included some additional considerations related to freedom of expression due to its importance (section 6.5.2). In its analysis, the Court relied mainly on Resolution No. 1/2020 “Pandemic and Human Rights in the Americas,” adopted by the Inter-American Commission on Human Rights (IACHR) on April 10, 2020.

The Court stated that the Government must ensure that everyone has the broadest possible access to information, and that it is essential for the Government to quickly develop affirmative measures to close the digital divide facing vulnerable and lower-income groups (para. 144).

It also stressed that “[o]nly from real and public data will citizens be able to understand the magnitude of the situation, raise awareness about the effects of this pandemic and cooperate in mitigating COVID-19” [para.143]. Consequently, citing IACHR’s Resolution No.1/2020 it noted that public officials and bodies a that guarantee the right to information “should give priority to requests for access to information related to the public health emergency, and also proactively report in detail on the impact of the pandemic and on emergency spending, and do so in an open format accessible to all vulnerable groups, in accordance with best practices internationally” [para.145]. The Court considered that under the current circumstances, it is the duty of the authorities to inform the population, and as they do so, act with diligence and give reasoned reports that are science-based. They should also remember that they are exposed to greater scrutiny and to public criticisms, even during special periods.

Finally, the aforementioned obligations may not violate the right to privacy and personal data, particularly regarding sensitive personal information on patients and people being tested during the pandemic. Consent must be obtained from such persons when gathering or sharing their sensitive data. Personal data gathered during the emergency must only be stored for the limited purpose of combatting the pandemic.

In conclusion, the Court decided to follow the latest international standards regarding the safeguarding of freedom of expression in the context of the current COVID-19 pandemic.