Case Summary and Outcome

The Constitutional Court of Ecuador ruled that blocking and limiting users’ interactions on the Facebook pages of public institutions violated users’ freedom of expression. The Government of Lago Agrio (Ecuador) blocked Carlos Bermeo’s profile on its Facebook page, preventing him from viewing content or commenting on posts. Bermeo argued that the Government of Lago Agrio violated his freedom of expression by restricting his ability to express opinions on public matters. The Government of Lago Agrio denied blocking him, claiming that Facebook removed his content for violating community standards and that the page was not under its full control at the time. The Court held that blocking, limiting interactions, or filtering users by the Government of Lago Agrio violated the right to freedom of expression since those measures did not pursue a legitimate aim, were not clear, previously defined, suitable, necessary, or proportional.

Facts

The plaintiff was Carlos David Bermeo Hidalgo, a citizen who used his social media accounts to express his opinions about public authorities and the mismanagement of public resources. He frequently shared his views by commenting on posts published on the Facebook page of the Lago Agrio (Ecuador) Government, called “Alcaldía de Lago Agrio.” However, on May 26, 2020, he discovered that the page had restricted his ability to comment or view its content.

On June 1, 2020, the plaintiff filed a constitutional protection action against the Government of Lago Agrio. He argued that his right to freedom of expression, recognized in Article 66 of the Constitution of Ecuador, was violated, as the government “limited his ability to express his ideas on issues of general interest and to participate in public debate.” [para. 29]

The Government of Lago Agrio argued that the Facebook page “Alcaldía de Lago Agrio” did not belong to it. Although it acknowledged that it was created by another administration between 2014 and 2019, it did not know if, at that time, it had the authorization of the highest authority of the municipality to create it. In addition, the government highlighted that between 2020 and 2024, it had partial access to the page. In 2024, after a complaint process before Meta, the Government assumed full control of the page. Furthermore, the Government argued that there was no blocking or impediment against the plaintiff. What happened, according to the government, was that Facebook, and not the defendant, moderated the plaintiff’s content because it violated community standards since he “published insults against the mayor and called on the population to have him removed from office.” [para. 36]

On June 15, 2020, the Unidad Judicial Multicompetente Penal (a criminal judge) dismissed the action because it considered that no constitutional rights were violated, and it was not determined whether the Facebook page really belonged to the Government of Lago Agrio. The plaintiff filed an appeal against this decision. However, the Provincial Court of Justice of Sucumbíos did not analyze the matter and ordered the case to be dismissed since the plaintiff did not appear at the hearing.

In October 2020, the Constitutional Court of Ecuador reviewed the case.

Decision Overview

Justice Daniela Salazar Marín delivered the judgment for the Constitutional Court of Ecuador. The central issue it decided was whether the Government of Lago Agrio violated the plaintiff’s right to freedom of expression by preventing him from posting comments on its official Facebook page.

The plaintiff claimed that his right to freedom of expression under Article 66 of the Constitution was violated, as he was prevented from expressing views on matters of public interest and participating in public debate.

The Government of Lago Agrio argued that the Facebook page did not belong to the current administration and that Meta, not the municipality, restricted the plaintiff’s content because he posted insults and encouraged the mayor’s removal. Hence, the defendant denied blocking the plaintiff or limiting his participation.

First, the Court addressed the question of whether the Facebook page “Alcaldía de Lago Agrio” belonged to the Government of Lago Agrio. It noted that the Government had acknowledged the page as an official one under its responsibility. To the Court, the fact that it was created under a previous administration or that there were administrative access issues did not exempt the Government from its responsibility for the content and interactions carried out through it. Even if the defendant lost temporary access as administrator of the page, the Government had a duty to inform citizens and other competent authorities through other official means —such as institutional web pages or other social networks— of this situation to take measures to prevent any infringement of users’ rights.

Next, the Court presumed that the Government prevented the plaintiff from commenting on its Facebook page because of the alleged criticisms he made against the head of that public institution. In this regard, the Court remarked that these speeches are specially protected by the right to freedom of expression because they refer to matters of public interest.

The Court recalled that when public institutions act as users on the Internet, they have the obligation to adapt their practices to meet the needs, dynamics, and problems on the Internet.  The Court underscored that social networks play an important role in facilitating and enhancing the dissemination of relevant content and public debate on issues of general interest. Moreover, the possibility of participating in public debate on social networks improves the quality of democracy, since it facilitates public control and citizen scrutiny of the authorities, articulates popular participation, and contributes to the strengthening of democracy and the rule of law. The Court stated that this type of participation is called “digital democracy.” [para. 81] Considering this, the Court held that the Government of Lago Agrio, through its Facebook page, had an obligation to respect and protect the users’ rights to freedom of expression and information.

Regarding the blocking of the plaintiff’s account, the Court held that, in principle, “blocking access to a user or preventing the publication of comments on the institutional page of a public entity, represents an undue limitation on the rights to freedom of expression of that user.” [para. 90] For this reason, the Court held that measures such as blocking, limiting interactions or filtering content, when carried by public institutions, must meet the following requirements to be valid: 1) seek a legitimate aim; 2) be clearly and previously defined; 3) be transparent; 4) be suitable, necessary and proportional to achieve a legitimate objective; 5) guarantee administrative and judicial mechanisms to review or cease unjustified limitations.

The Court held that the blocking and limitation of the plaintiff’s freedom of expression was unjustified because it did not meet the requirements of this test. To the Court, these measures did not have a legitimate purpose. According to it, a legitimate purpose could be the protection of an orderly debate on the official social networks of public institutions and the respect of the rights of others. However, in this case, the Court highlighted that the plaintiff had made respectful comments that benefited from special protection under the right to freedom of expression. Therefore, the content moderation carried out by the Government of Lago Agrio did not pursue a legitimate objective.

Subsequently, the Court argued that the measures were inappropriate. The Court said that State accounts are a key factor in the distribution of information of general interest and the protection of public debate. Therefore, they can and should only moderate their content in the face of hate speech, publications that incite violence, sexually explicit or violent content, among others. Considering the nature of the plaintiff’s expression —scrutiny of public authorities—, the Court concluded the measures did not meet the threshold to be appropriate.

Likewise, they were not necessary, as there were less restrictive alternatives to blocking —for example, applying warning measures, deleting comments that exceed the limits of freedom of expression, or even reporting the publication or interaction to the moderators of the social network to manage the alleged abuse. However, as noted by the Court, the Government of Lago Agrio prevented the plaintiff from making comments permanently, which generated “a complete isolation from a space of public debate that does not satisfy the principle of necessity.” [para. 106] Finally, the Court considered that the measures were not proportional, considering the limitation was total.

For all the reasons stated above, the Constitutional Court of Ecuador concluded that the Government of Lago Agrio violated Bermeo’s right to freedom of expression.

The Court ordered the annulment of decisions issued by the lower courts and to lift any impediment that could limit the plaintiff’s ability to make comments on the defendant’s social networks. It also ordered the defendant to offer public apologies to Bermeo and to create a protocol on the use of social networks.