The Constitutional Court of Ecuador reviewed an action challenging the constitutionality of the electoral reform, and specifically Articles 21 and 22 of the Organic Law Amending the Organic Law on Elections and Political Organizations (Ley Orgánica Reformatoria a la Ley Orgánica Electoral y de Organizaciones Políticas). These articles prohibit private campaign funding; prohibit the media from conducting any direct or indirect promotional activities, “whether through news coverage, special coverage, or any other form of message,” which would affect in any way a candidate, message, political argument, etc. (Article 21); and establish an information blackout from 48 hours before election day until 5 pm on election day. The Court held that the law was constitutional with two exceptions. First, the Court excluded private social media from the information blackout and limited it to traditional media outlets. Second, it declared unconstitutional the phrase “whether through news coverage, special coverage, or any other form of message” in the final paragraph of Article 21.

The action was filed against, inter alia, Articles 21 and 22 of the law amending the electoral law, which: (i) prohibits contracting and disseminating election advertising with private funds (Article 21, Paragraph 5); (ii) prohibits the media from “conducting direct or indirect promotional activities, whether through news coverage, special coverage, or any other form of message, which would positively or negatively affect a certain candidate, idea, option, electoral preference, or political argument” (Article 21, Paragraph 6); and (iii) establishes an information blackout from 48 hours before election day until 5pm on election day, during which time it prohibits the “dissemination of any kind of information issued by government institutions; the dissemination of election publicity, opinions, or images, in any kind of media, which would influence voters’ electoral position or preference; holding rallies, meetings, or any other activity or program of an electoral nature” (Article 22).

The plaintiffs contend that paragraph five of Article 21, which prohibits private individuals or entities from contracting election advertising, is unconstitutional insofar as it establishes an illegitimate restriction of freedom of expression, because the wording of the article is extremely broad and could lead to extreme interpretations such as a prohibition on promoting political participation.

Second, they believe that paragraph six of Article 21, which prohibits the media from “conducting direct or indirect promotional activities, whether through news coverage, special coverage, or any other form of message in favor of or against candidates or ideas,” contains a very broad and ambiguous prohibition that includes speech that is not only legitimate but necessary in a democratic society, such as that related to possible election fraud committed by candidates. They state that this may constitute an act of prior censorship.

Finally, the plaintiffs argue that Article 22 prohibits the dissemination of any kind of opinions in all types of media in the hours before elections are held, and therefore is disproportionate. In their view, this can be understood to prohibit any form of expression by citizens, not only in mass media but also on electronic media, blogs, social media, etc.

The Court upheld the constitutionality of the contested articles, except for the phrase “whether through news coverage, special coverage, or any other form of message” in paragraph six of Article 21.  It also conditioned the constitutionality of the information blackout, contained in Article 22, on not extending it to the use of social media by actors other than traditional media outlets.

Constitutionality of Article 21, Paragraph 5:  Regarding the challenge against the prohibition on “parties subject to private law” contracting or disseminating “advertising and publicity concerning the electoral process in the press, radio, television, billboards, and any other means of mass communication,” the Court explained that constitutional rights are not absolute. In this case, it considered that the right to freedom of expression and information may have limits provided that these do not constitute prior censorship. According to the Court, the contested law seeks to protect citizens’ right to learn about all of the candidates on an equal basis. In terms of the reasonableness of the law, the Court held the following: (i) the National Electoral Council equitably distributes publicity, with which candidates may make themselves known and promote their political platforms; (ii) the law protects citizens’ right to have “equal” opportunities to learn about the candidates; (iii)  the purpose of the law is for the media not to take sides in favor of one candidate; (iv) the law seeks to prevent the media from conducting advertising or publicity through avenues other than those endorsed by the National Electoral Council. For these reasons, the Court held that the law was constitutional.

Constitutionality of Article 21, Paragraph 6: With regard to the challenge against the rule prohibiting the media, throughout the election campaign, from conducting “direct or indirect promotional activities, whether through news coverage, special coverage, or any other form of message, which would positively or negatively affect a certain candidate, idea, options, electoral preferences, or political argument,” the Court clarified the difference between direct and indirect promotional activities. Direct promotion explicitly promotes a candidate, political party, or political platform. Indirect promotion is “disguised or misleading, which would positively or negatively affect a candidate, as if it were information”. [p. 133]. According to the Court’s reasoning, the prohibition is constitutional in both cases, because it seeks to ensure equity in electoral campaigns. However, the Court found that although the prohibition is constitutional, defining the ways in which promotional activities may be conducted in such a general manner does undermine constitutional norms, since the broadness of the prohibition could lead to interpretations that undermine the right to freedom of expression. For this reason, it declared unconstitutional the expression “whether through news coverage, special coverage, or any other form of message.”

Constitutionality of Article 22: Regarding the media blackout required by Article 22, the Court stated that this provision is intended to avoid any kind of influence or impact on citizens’ electoral preferences, within a reasonable period of time prior to the elections. In the Court’s opinion, there are two kinds of media: “traditional and non-traditional”. [p. 138]. Non-traditional media are, according to the Court, all those “new media” that operate through information technology, in which people can give their opinions, such as Twitter, Facebook, blogs, etc. The Court considers that the article in question cannot limit the right of expression of individuals who wish to use these tools to disseminate their opinions. Accordingly, the Court believes that the information blackout should apply exclusively to those statements published, in any format, by “traditional” media. Furthermore, it states that during the blackout period, “traditional” media outlets are required to “verify,” before publication, that third-party information disseminated on their platforms does not violate the prohibition established in the article in question. According to the Court, “(…) [the information blackout] should not apply to social media, which individuals have the right to use to convey ideas, opinions, or information of national interest with regard to the electoral process, thereby ensuring the full exercise of freedom of expression. However, consistent with the arguments above, traditional media outlets shall refrain from publishing or disseminating through electronic and social media any election publicity, opinions, or images that would influence voters’ electoral position or preferences. Traditional media outlets are also required to verify the public statements, opinions, or information received through new media before publishing them, in order to guarantee the right to vote of all citizens”. [p. 141].