Case Summary and Outcome

On April 9, 2018, the Constitutional Court of Colombia joined two cases under the same legal cause since the plaintiff alleged a violation of their fundamental rights to a good name and personal and family privacy and to honor as a consequence of the publication of videos on the social network Facebook and YouTube platform.

In the first case, the Court determined that Google, as intermediary and administrator of YouTube, did not violate the rights alleged by the plaintiff and did not have the duty to remove the video in question. Thus denied the Acción de Tutela brought against the company.

In the second case, the Court confirmed that the facts of the claim, posted by the defendant on her Facebook profile, had no evidentiary support and thus did not infringe her right to a good name. 

Facts

In the first case, the plaintiff found a video on YouTube suggesting that while she was supposed to perform her duties as a nursing assistant, she was browsing on Facebook. As a result, the plaintiff requested Google- as the administrator of Youtube- to remove the video and the information of the user who had posted the video so that they would proceed to remove it.  After Google refused both requests, the plaintiff filed an Acción de Tutela pleading the safeguard of her right to privacy and honor. The First Instance Court denied the plaintiff’s application and declared it inadmissible, arguing that in addition to failing to prove the existence of irreparable damage, she had other mechanisms in the ordinary justice system to investigate the person who uploaded the video.

In the second case, the plaintiff was recorded by a patient’s relative after she denied their entrance to the surgery that would be performed on the patient as the medical protocol indicated. The relative published the video on their Facebook page, tagging the health care institution and claiming that the plaintiff’s conduct had been discriminatory because of their physical disability. The First Instance Court determined that the plaintiff’s fundamental rights to privacy, honor and good name had been infringed and held that the video promoted a negative work and family environment for the plaintiff. 

Decision Overview

The main issues for the Constitutional Court to analyze in this case were two. First, whether Google’s refusal to remove videos from its servers and platforms, such as YouTube, that may be subject to reproach involved the violation of the plaintiff’s fundamental rights to good name and honor. Second, the Court examined whether a user’s decision to disclose a video in their personal Facebook account in which they report on behaviors allegedly constituting discrimination by another user violated the fundamental rights to good name and privacy.

Before analyzing the substantive legal issues related to freedom of expression, the Court addressed the procedural requirements of the tutela action in cases of expressions through digital platforms. Among others, it indicated that “prior rectification, as a requirement to proceed with the tutela action, is required in the following cases: (i) when the information circulates through mass media; (ii) when it is disseminated by social communicators, regardless of whether or not they have links with a media outlet; (iii) when the issuer is not a social communicator or journalist, but is habitually engaged in the dissemination of information; and (iv) when the person who makes the publication, first, does not have the status of social communicator and, second, does not fulfill that role within the social group. ” (p. 63) The Court specified that this requirement must be met in light of the criterion of reasonableness. Consequently, the rectification can be requested, for example, by means of an internal “inbox” message or a comment in the publication (p.66). In any case, this requirement cannot lead to unjustifiably limit the exercise of the tutela action in cases where it is not possible to contact the author of the message to request the rectification.

Regarding the first issue, the Court recalled that Article 20 of the Constitution includes the right to freedom of expression, opinion and press, as well as the right to rectification. Regarding the right to freedom of expression, it recalled that it includes the freedom to express and disseminate information and ideas by any means and under any conditions. It also includes the freedom to investigate, seek and receive facts, information and opinions, as well as the freedom to report them. The Court also recalled that constitutional jurisprudence has identified other normative elements derived from this article, such as the freedom to establish media outlets, the prohibition of prior censorship, the prohibition of war propaganda and advocacy of hatred, crime and/or violence, the prohibition of child pornography and, finally, the prohibition of public and direct incitement to genocide.

It stressed the importance of freedom of expression in democratic societies, especially because they reinforce democratic values and citizen participation. It also recalled the importance and value of this right in the personal fulfillment of each individual. It also indicated that restrictions to freedom of expression must comply with the requirements of legality, legitimacy, necessity and proportionality.

For the Court, constitutional jurisprudence has specified the content of the burdens of truthfulness and impartiality. The former requires that the information disseminated can be verified and the latter that the information can be contrasted with different versions of the same facts in order to raise different sides of the debate. Consequently, whenever in “the broadcasting or publication of information the limits of truthfulness and impartiality are disregarded, rectification is appropriate under conditions of fairness” (par. 80).
The Court was clear in stating that rectification is not applicable to opinions. However, it indicated that some opinions may be based on facts and that rectification may proceed with respect to these.

It emphasized that the “new information technologies” have allowed the massive dissemination of information and therefore can potentiate the risks generated in the networks. Especially, with respect to the possible impact on the rights of third parties.

The Court recognized that the right to honor and good name also enjoy constitutional protection.

In relation to the request for rectification, the Constitutional Court indicated that it has developed the following jurisprudential sub-rules: “(i) as a general rule, whoever questions the veracity or impartiality of the information has the duty to demonstrate the falsity or partiality of the same; and (ii) is exempted from compliance with this duty when it is a matter of ‘notorious facts, assertions or undefined denials’. In the latter case, the burden of proof is shifted to the issuer of the message ‘given the difficulty [for the applicant or plaintiff] of proving such assertions’ (par. 90). The Court indicated that the exemption from the burden of proof in relation to indefinite assertions or denials must be applied with special caution due to the restrictions it may cause to the right to freedom of expression. Consequently, the person requesting the rectification may not base it on undefined denials or affirmations.

Finally, the Court indicated that the proof of truth as an exemption from liability (exceptio veritatis) has also been used by the Court. It specified that it is not a figure exclusive to criminal proceedings and that, in the event of an alleged violation of the rights to honor or good name, proof of the truthfulness of the statements is a suitable means to release the person who has issued the information from liability, provided that it is shown that the person was sufficiently diligent in verifying the sources (par. 92).

In the  immediate case, the Constitutional Court deemed that  the video did not make explicit reference to the plaintiff, nor did it specify the place or date of occurrence. Moreover, the Court considered that the video did not portray conduct aimed to infringe her honor and good name. Thus, it determined that Google’s refusal did not violate her fundamental rights. 

Furthermore, the Court noted that YouTube did not have the obligation nor the power to verify, before publication, whether the content disseminated through the platform may infringe the rights to good name and honor since such a measure would give rise to prior censorship. In the Court’s opinion, Google and YouTube’s role as intermediaries is only to allow third parties to create and share their content.

Concerning the second issue, the Constitutional Court found that although offensive comments were displayed in the video posted on Facebook, there was no evidence that they violated the plaintiff’s good name. 

The Court highlighted that the right to disseminate information comprises four areas or dimensions of protection: (i) access to information held by the State or by private individuals who perform public functions; (ii) the right to inform, communicate, disseminate, broadcast or transmit information, against which censorship does not apply; (iii) the right to be informed or to receive truthful and impartial information and; (iv) the right to inform oneself, that is, the freedom to seek or investigate information about facts, ideas and opinions of all kinds [par. 79], within which the element of verifiability of the information is essential. Thus, the Court emphasized that in the current context, characterized by the speed and widespread of information through social networks, it is required to establish special measures to verify that the disseminated information can damage the good name of a person, which is linked to public life and the assessment that the social group makes of it. In circumstances where the information has not been verified, and therefore the good name or honor of a person is harmed, rectification is appropriate.