Defamation / Reputation, Privacy, Data Protection and Retention
Don Domingo v. Google Spain
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A Colombian Constitutional Court reversed a previous decision that withdrew an author’s book from the market after being accused of violating another individual’s right to honor and good name. A public prosecutor brought an action to enforce constitutional rights (acción de tutela) against the author of a book because, in her opinion, the author made an unsubstantiated accusation that she committed a number of procedural illegalities in a criminal trial against several members of a multinational company, thus violating her rights to honor and a good name. The Court reasoned that criticisms, even if exaggerated or negative, are protected by the legal system and that the book reflected the author’s notion of truth, which cannot be restrained in a multicultural and democratic society. Additionally, the Court noted that public servants face a higher threshold of criticism and hence upheld the author’s freedom of expression.
A citizen wrote a book denouncing that in the criminal proceedings in which he was a victim, a major multinational company used its influence to divert the process. According to the book, the prosecutor in the case incurred in several irregularities that raised suspicions about her conduct. Hence, the author insinuated in several sections of the text that the prosecutor had incurred in procedural illegalities in the criminal proceedings against members of the multinational. Additionally, the book stated that the prosecutor committed acts of corruption. In light of these suspicions, the citizen pressed charges against the prosecutor. However, the investigation was dismissed and, therefore, no decision was made on the merits.
The prosecutor, dissatisfied with the critical judgment in the book, brought an action to enforce her constitutional rights (acción de amparo) to protect her fundamental rights to honor and a good name. In the action to enforce her constitutional rights (acción de amparo) she requested the text’s circulation be restricted, its exhibition prohibited and the decision protecting her right published in a widely published national newspaper. Also, as a precautionary measure, she requested the book be withdrawn from market.
The judge of first instance granted the precautionary measure requested by the petitioner because, in his opinion, the book intended to “taint the ethics and honorability of the official” [para. 3]. However, the precautionary measure was lifted days later. On the merits, the judge decided to protect the petitioner’s rights arguing the expressions contained in the book questioned the prosecutor’s ethical qualities. It also found that the book had statements accusing the official of the crime of breach of public duties through action and through bias, although the judiciary had already ruled and acquitted the prosecutor.
The book’s author challenged this decision.
The judge of second instance upheld the decision. According to the judge, the author of the book exercised his freedom of expression abusively, since there was no court decision that condemned the prosecutor’s actions. Finally, the judge added that the book’s author was not allowed to “carry out his own investigation, trial and sentencing in the book in question” [para. 9].
The Court repealed the lower judges’ rulings considering the expressions in the book at issue were protected by the right to freedom of expression.
The Court had to decide, firstly, whether the publication of a book containing expressions from which it could be inferred that a public official had committed irregularities in the performance of her duties is protected by the right to freedom of expression.
Secondly, the Court had to decide whether the precautionary measure ordered by the lower court to recall from market a book containing potentially offensive expressions against a public official, was an act of censorship.
The Court began its analysis by stating that frequently there is tension between the rights to honor, good name, and freedom of expression. Furthermore, when such collisions arise, in principle, freedom of expression prevails because it constitutes a “decisive element for […] the attainment itself of democracy ” [para. 17]. As a result, Court declared that when it is necessary to limit the right, it must be done properly and always within the limits established by Article 13 of the American Convention on Human Rights.
For the Court, freedom of expression includes both freedom of information and of opinion. Regarding freedom of information, the Court said it must be exercised within the limits of “truth” and “impartiality” in light with domestic jurisprudence. However, on freedom of opinion, the Court explained that “it is impossible to demand veracity and impartiality. By definition, opinion is not accurate, to the extent that does not convey facts but judgments about them. Nor is it possible to demand impartiality, since the opinion is a subjective product of the issuer” [para. 18]. However, the Court considers opinions are essential to democracy. Therefore, it considered that even opinions that are annoying, negative, alternative, exaggerated or that cause discomfort are protected by the legal system. The Court stated, “only when such questioning and criticism reaches insult levels or, in the case of expressions directed at specific people, it result absolutely disproportionate to the facts, behaviors or actions that support the opinion, in a way that indicates that more than generating debate, its intention is clearly to offend without any reason or persecution devoid of reasonableness, an intense control over the expressed opinions is activated” [para. 20].
In this case, the Court noted the book contained several insinuations or suggestions that reflected the author’s notion of the truth, which could not be rejected in a multicultural and democratic society, specially considering that expressions involving public servants have a higher degree of protection.
For the Court, although there was already a judicial decision on the conduct of the prosecutor, this does not block people from expressing their critical views because, ultimately, this would ban any criticism of judicial activity. Therefore, the Court declared that the second instance decision that limited the author’s right to express himself, “constituted an unacceptable restriction on freedom of opinion, to the degree that it determines reputation based solely on whether the conduct of the petitioner has been the subject of legal reproach, which, in turn, results in the imposition of a certain notion of the world: one that has been established through the legal system. This unjustifiably restricts traffic of ideas within society” [para. 30]. Finally, the Court highlighted that in Colombia there are no laws that ban critical expression on public officials. In this regard, the Court cited the Report on the Compatibility of “Desacato” (contempt) Laws and the American Convention on Human Rights of the Inter-American Commission on Human Rights and Article 13 of the International Convention on Civil and Political Rights.
The Court also considered that the precautionary measure ordered by the first instance judge was an act of censorship. In this regard, the Court stated, “censorship occurs when, without having established liability, the circulation of ideas or opinions is impeded” [para. 41]. Therefore, the act of withdrawing the book from the market fell within a practice prohibited by the Constitution and international treaties.
Based on the foregoing, the Court decided to entirely reverse the second instance ruling.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling has a mixed result because although, on its face, it protects expressions that could be considered uncomfortable, alternative and even exaggerated (in accordance with international standards), it also opens the door to the application of criminal standards when an opinion has the intent to offend, even a public official, in opposition to the Declaration of Principles of Freedom of Expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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