Case Summary and Outcome

The Constitutional Court of Ecuador held that sanctioning Revista Vistazo for publishing an editorial during a referendum violated the right to freedom of expression. The Electoral Court fined the magazine (USD 80,000), under Article 277 of the Code of Democracy, for allegedly engaging in unauthorized electoral advertising. The editorial opposed several referendum questions related to media regulation and judicial reform. The Constitutional Court held that the sanction was unlawful because, at the time of publication, the electoral ban did not apply to the media and the relevant restrictions were introduced only later. The Court emphasized that political speech in electoral contexts is entitled to heightened protection and that vague or retroactive rules cannot justify sanctions. It also rejected the legitimacy of the aim invoked by the Electoral Court, which was to ensure fairness in electoral publicity. The Court ruled that sanctioning editorial content could chill public debate and harm democratic discourse. Therefore, it declared the sanction unconstitutional and ordered restitution measures, including the revocation of the fine and training for electoral officials.

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Facts

Vistazo Magazine is a media owned by the company Editores Nacionales (National Editors). In May 6, 2011, issue No. 1049 of the magazine was published. The editorial section included an article entitled “Un no rotundo” (A decisive no), in which the magazine expressed its opposition to some of the questions in the May 7, 2011, referendum.

Specifically, it said:

“In defense of 54 years of journalism, exercised with absolute independence from political and economic powers, Vistazo says NO to question number three and, considering that question nine, which creates a media regulatory council, has the ulterior motive of affecting freedom of expression and establishing controls on the media, also says NO. Finally, questions four and five, which allow the executive branch to reform the judiciary, are an interference in the judicial branch and affect the balance of powers that must prevail in a democracy. These also deserve a resounding NO. In short, the referendum, which was originally intended to improve public safety, will not solve that problem.” [para. 15]

On June 20, 2011, several complaints were filed against Editores Nacionales for that publication. The complainants alleged a violation of the Organic Law on Elections and Political Organizations of the Republic of Ecuador (Code of Democracy) since Articles 202, 205, and 277 prohibited third parties, including the media, from publishing political or electoral campaign materials without the authorization of the National Electoral Council and during the electoral campaign.

On December 12, 2011, a judge of the Electoral Court dismissed the action. The judge understood that the publication was not electoral advertising, but rather the media’s own opinion. An appeal was filed against this decision.

On September 26, 2012, the full bench of the Electoral Court found Editores Nacionales responsible for violating Article 277 of the Code of Democracy and imposed a fine of USD 80,000. The Court considered that the contested editorial was electoral advertising, as it took a position against several of the questions in the referendum. It also highlighted that the article was published in close temporal proximity to the elections.

On October 11, 2012, Editores Nacionales filed an extraordinary action of protection against the decision, which reached the Constitutional Court of Ecuador that month. The petitioner argued that the decision violated its right to freedom of expression because “if the magazine had contained electoral propaganda (which was not the case with issue No. 1049 of Revista Vistazo), and went on sale before the electoral silence period, but remained on the shelves when that date arrived, that would mean that it would have to be withdrawn from circulation.” [para. 45]

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Decision Overview

Justice Teresa Nuques Martínez delivered the judgment for the Constitutional Court of Ecuador. The central issue it decided was whether the ruling imposing electoral sanctions on Vistazo Magazine, for publishing an editorial with its opinions on an upcoming referendum, violated its right to freedom of expression.

First, the Court emphasized the importance of freedom of expression in electoral contexts. It recalled that freedom of expression is linked to the exercise of political rights, as both contribute to the strengthening of democracy. Therefore, during election periods, freedom of expression and information are crucial to ensuring the effective exercise of political rights, which creates an environment that fosters plurality in media outlets, ideas, and opinions, thus enriching political debate. For all these reasons, the Court concluded that the State is obliged to promote pluralism of information for its main stakeholders: voters, political parties, and the media.

Next, the Court clarified that this case did not involve prior censorship since it analyzed whether the subsequent sanction imposed —an electoral penalty and a fine of USD 80,000— met the proportionality test imposed by Article 13 of the American Convention on Human Rights. On this point, the Court concluded that the sanction imposed on Vistazo magazine was not legal, nor did it pursue a legitimate aim.

Regarding the legality requirement, the Court noted that the sanction was provided for in Article 277 of the Code of Democracy, which prohibits the media from “broadcasting political or electoral advertising, whether paid or free, ordered by persons other than the National Electoral Council.” [para. 79] This sanction was applied by the Electoral Court for allegedly violating the electoral ban (which ran from March 26 to May 4, 2011) and the rules of the electoral campaign.

However, according to the Court, on the date the editorial was published (May 6, 2011), the electoral ban did not apply to the media, but only to public institutions. Furthermore, it considered that the ban on the media—barring it from publishing any message that indirectly or directly promoted a political thesis—was not applicable either. The Court argued that these prohibitions were subsequently introduced into the Code of Democracy. For this reason, the Court concluded that the Electoral Court violated the principle of legality by retroactively applying legal norms and not basing its decision on prior, express, and clear laws.

On the other hand, the sanction was deemed illegitimate because it was not based on legitimate aims (the protection of third-party rights, public order, the common good, or national security). The Electoral Court based its sanction on the Code of Democracy, which sought to protect exclusivity or fairness in electoral advertising and to limit or control the financing of electoral expenses. The Court said that these purposes did not justify sanctioning a media outlet for expressing public interest information that it may disseminate through an editorial.

In addition, the Court emphasized that it was necessary to identify the nature of the contested speech to determine its scope of protection. In this regard, it held that the editorial was in the public interest, as it referred to the possible risks that the approval of the May 2011 referendum could entail for citizens in Ecuador. Therefore, it was a form of expression that was specially protected by the right to freedom of expression. The Court also said that sanctioning political content in an electoral context could constitute undue control or regulation by the State, which could have an inhibiting effect on other media outlets.

Since the sanction was neither legal nor legitimate, the Court considered it unnecessary to analyze its necessity and proportionality. For all the reasons stated above, the Constitutional Court of Ecuador concluded that the sanction imposed by the Electoral Court was an inadmissible restriction on the freedom of expression of Vistazo magazine.

As for remedies, the Constitutional Court of Ecuador ordered measures of restitution, satisfaction, and non-repetition, including revoking the sentence imposing the penalty, issuing a public apology, and implementing a training plan in the Electoral Court.

Following the decision, the Court established two parameters that must be considered when protecting freedom of expression in the context of elections. First, the Court urged judges and public authorities to safeguard freedom of expression and to apply the criteria established in this judgment, to ensure that any act from the State —whether administrative, legislative, or judicial— remains compatible with this right. As a guideline, it stated that freedom of expression may be exceptionally restricted only when the principles of legality, legitimacy, suitability, necessity, and proportionality are met. Further, it emphasized that it is essential to determine the nature of the speech to tailor State action to the applicable standards for the protection of freedom of expression.

Secondly, the Court urged the media, journalists, and political commentators to carry out their work responsibly in electoral contexts. To that end, it called on these actors—as well as any person involved in the dissemination of information—to observe the obligations outlined in international instruments, such as the Joint Declaration on Media and Elections of May 15, 2009, and the Joint Declaration on Freedom of Expression and Elections in the Digital Age, issued on May 1, 2020, by the Special Rapporteurs of the United Nations (UN), the OSCE, and the Organization of American States (OAS).

In determining these parameters, the Court considered the importance of protecting freedom of expression prior to elections. In this context, it argued that banning all statements in the media out of fear of influencing voters does not protect them; on the contrary, it could silence critical voices and undermine the social dimension of freedom of expression.

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