Case Summary and Outcome

The Constitutional Court of Colombia held that custodial sentences for the crime of defamation (“calumnia” and “injuria”) were compatible with the Constitution,  Article 13 of the American Convention on Human Rights, and  Article 19 of the International Covenant on Civil and Political Rights. The petitioners claimed that articles 220 and 221 of the Colombian Criminal Code, which order custodial sentences from 16 up to 72 months for these crimes, affected freedom of expression because they have a chilling effect that leads to self-censorship. Furthermore, the petitioners argued that international human rights standards consider that custodial sentences for these crimes should be abolished, and warned that these penalties facilitate Strategic Lawsuits Against Public Participation (SLAPPs). The Court held that the custodial sentences were issued by Congress within its mandate and did not necessarily have an intimidatory effect because it was improbable that the punishment for defamation actually entailed going to jail. The judges explained there were several alternatives to avoid prison, such as mandatory mediation, retraction/recantation, the truth defense, or home detention. For the Court, the law simply imposed a duty of caution when exercising freedom of expression that was not excessive considering the impact it could have on the dignity, honor, and reputation of individuals. The Court also highlighted that false accusations could constitute crimes and that was an adequate tool to prevent SLAPPs. Finally, the judges held that there was no mandate from international treaties to prohibit custodial sentences for the crime of defamation, and that international soft law does not have constitutional hierarchy.

Facts

On February 21, 2023, petitioners Ana Bejarano Ricaurte, Lucía Yepes Bonilla, Susana Echavarría Medina, and Emmanuel Vargas Penagos, filed an unconstitutionality action (acción pública de inconstitucionalidad) against articles 220 and 221 of the Colombian Criminal Code, which regulate the punishments for the crime of defamation (calumnia e injuria).

Article 220 orders custodial sentences from 16 to 54 months against those who utter dishonorable allegations (injuria) while Article 221 orders custodial sentences that go from 16 to 72 months for falsely attributing a crime to someone (calumnia). The petitioners claimed that, by contemplating custodial sentences, the law established prior restraints, disregarded the enhanced protection of journalists, jeopardized democracy, and violated freedom of expression.

On March 17, 2023, the Constitutional Court admitted the action. Different public authorities presented written submissions, such as the Ministry of Justice, the Attorney General’s Office, the National Agency for the Judicial Defense of the State, and the National Media Association. Civil society organizations such as Media Defence, Robert F. Kennedy Human Rights, Fundación para la Libertad de Prensa (FLIP), the Colombian Academy of Jurisprudence, and Wikimedia Foundation, also participated as amici curiae.

Decision Overview

Judge Jorge Enrique Ibáñez Najar delivered the opinion for the Constitutional Court of Colombia. The main issue before the Court was whether the Colombian Criminal Code provisions that ordered custodial sentences for the crime of defamation were compatible with the Constitution, Article 13 of the American Convention on Human Rights (ACHR), and Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

The petitioners claimed that custodial sentences for defamation were against the democratic nature of the State and that they seriously affected journalistic exercise. In their opinion, this threat hindered the free flow of information and opinions because imprisonment had an intimidatory effect that led to self-censorship. They also highlighted that such a penalty violated the enhanced protection that the Constitution afforded to journalists since it could be used to harass the media. The petitioners recalled that violence against journalists was increasing in Colombia and that the use of Strategic Litigation Against Public Participation (SLAPPs) was also on the rise as a tool to silence freedom of expression. Finally, they argued that several international bodies considered that custodial sentences should be abolished for the crime of defamation. In sum, the lawsuit emphasized that articles 220 and 221 of the Criminal Code were not necessary nor proportional due to their intimidating nature and the chilling effect it had on journalists—which severely affected democracy. The petitioners requested the elimination of custodial sentences for the crime of defamation and the removal of norms that could favor SLAPPs.

At the outset of its analysis, the Constitutional Court differentiated this case from its judgment in decision C-442/11, where it also analyzed the constitutionality of articles 220 and 221 of the Criminal Code. In that instance, the scrutiny referred to the legality principle and whether the law criminalized conducts in a vague and imprecise manner. Here, the main question revolved around the judicial consequences of those conducts. In the Court’s words: “It is one thing to question the criminalization of certain conducts or how this criminalization is made, but it is quite another to question the fact that they are punishable by imprisonment.” [para. 94]

The Constitutional Court clarified that articles 220 and 221 had a legitimate aim as they were intended to protect the honor, reputation, human dignity, and good name of every person, from acts committed by others (not only journalists). It further explained that it was Congress who established the consequences for committing crimes and that it had a wide margin of appreciation to establish punishments—as long as it respected the limits established by the Constitution and the jurisprudence. In this sense, the Court had a duty to ensure that this legislative discretion was used reasonably and proportionally.

In order to argue that a possible custodial sentence for the crime of defamation was not unconstitutional, the Court said that “the fact that the law provides for a specific penalty does not necessarily mean that the trial will culminate in its imposition, even if the person is found criminally liable.” [para. 147] It further held that for the crime of defamation there were several alternatives to avoid criminal proceedings, such as mandatory mediation or retraction. It also explained that if the expressions that triggered the lawsuit were proven true, then the defendant should also avoid criminal liability. Moreover, the Court mentioned that even if a tribunal finds that the crime of defamation was committed, the defendant had the right to appeal, and that house arrest was also a plausible punishment. For all these reasons, the Court concluded that “it [was] very unlikely that the punishment for defamation amount[ed] to a custodial sentence.” [para. 152] Hence, in the Court’s opinion, the chilling effect caused by this remote possibility was not as high as the petitioners claimed.

The Court also explained that Congress considered that fines were not a sufficient punishment to protect important rights and values such as honor and reputation. For the judges, this was reasonable, otherwise “anyone who has sufficient economic means can affect, without any afflictive consequences, the good name or honor of others.” [para. 176] In conclusion, the Court found that there were no alternative means to adequately balance the conflicting rights. In its own words: “The argument regarding the protection of freedom of expression and journalistic activities cannot justify an insufficient protection of the rights to a good name and honor of individuals.” [para. 184] Thus, the Constitutional Court ruled that, under the present conditions, custodial sentences were not a disproportionate punishment. Regarding the petitioners’ argument about SLAPPs—and how they were facilitated by custodial sentences—, the Court highlighted that the arbitrary and abusive exercise of judicial proceedings is a crime that could be punished more severely than defamation, which helped to prevent it.

The Court also held that there was no mandate from international treaties to prohibit custodial sentences for the crime of defamation and that international soft law does not have constitutional hierarchy. For the judges, the Inter-American Court of Human Rights’ jurisprudence must be considered “but not adopted irreflexively.” [para. 193]

Thus, the Court considered that the contested provisions were valid, as laid out throughout the decision.

Judge Cortés González wrote his own concurring opinion. He proposed to modify Article 223 of the Criminal Code, which orders harsher penalties for the crime of defamation when committed by journalists and the media. In his opinion, this is an unjustified discrimination that disregarded the importance of journalism and facilitated SLAPPs. He also criticized the argument of the Court that explained that the crime that punished the abusive exercise of judicial proceedings was suitable to prevent SLAPPs by ordering more severe punishments than the crime of defamation. Judge Cortés González also disagreed with the argument that a fine would not be enough to punish the crime of defamation. Additionally, he claimed that the fact that there were alternative measures to avoid imprisonment did not necessarily mean that there was not a chilling effect for journalists: “It is clear that a journalist can avoid conviction by many means, but at the cost of recanting the claims that, even if true, led them to be sued […] even if it is difficult to be convicted for such offenses, this does not diminish the effect of the potential imposition of a custodial sentence.” [para. 12. e]