Global Freedom of Expression

Case on the right to privacy in divorce proceedings

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Electronic / Internet-based Communication
  • Date of Decision
    October 13, 2022
  • Outcome
    Judgment in Favor of Petitioner, Injunction or Order Granted
  • Case Number
    SU-355/22
  • Region & Country
    Colombia, Latin-America and Caribbean
  • Judicial Body
    Constitutional Court
  • Type of Law
    Constitutional Law
  • Themes
    Access to Public Information, Privacy, Data Protection and Retention
  • Tags
    Intimacy, Google, Court Records, De-Index

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Case Analysis

Case Summary and Outcome

The Constitutional Court of Colombia held that the online publication of a court docket relating to a divorce, which included files with information about the petitioner’s family life, violated her right to privacy. The petitioner was the defendant in a divorce lawsuit before a civil court. Due to the Covid-19 pandemic, the government established that every judicial notification should be conducted online. The civil court, alleging compliance with this order, published the divorce docket’s judicial files on its website. Although the petitioner requested, through a tutela action (amparo), that the files should not be accessed through a Google search, the documents remained online and publicly available. The Constitutional Court, upon hearing the case on appeal, clarified that the Covid-19 regulations did not oblige tribunals to publish all judicial files—only to conduct notifications virtually. It also held that private information, such as the petitioner’s, was exempted from publication. Thus, it ruled that publishing the court docket violated the right to privacy. The Court ordered the files to be removed from the internet and requested the Judiciary to train its employees in charge of publishing content on their websites.


Facts

On September 23, 2019, a divorce lawsuit was filed before Court No. 1 (as identified by the Constitutional Court). Allegedly complying with government-issued Decree 806/2020 on judicial notifications—which stated that due to the Covid-19 pandemic every notification should be conducted virtually—, the court published on its website the case files related to the lawsuit. The documents included personal information about the parties’ family life.

On May 25, 2021, Sofía (not her real name), the defendant in the divorce lawsuit, found these documents through a Google search and requested Court No. 1 not allow the information published online to be reached through search engines. The court did not respond to the request.

On June 25, 2021, Sofía filed an acción de tutela (or amparo action) before Court No. 2 to protect her right to privacy, intimacy, and family life. She asked the tribunal to order Court No. 1 to eliminate the judicial files it had published on its website.

On June 30, 2021, Court No. 1 responded to Sofía’s tutela action, saying it would not delete the docket from its website since there was a decree stating that notifications within judicial proceedings should be virtual due to the Covid-19 pandemic. Furthermore, it held that the docket’s online publication complied with the guidelines delivered by the Superior Council of the Judiciary (Consejo Superior de la Judicatura). Nevertheless, Court No. 1 asked the Center for Judicial Documentation (Centro de Documentación Judicial, or CENDOJ) to deindex the information from Google.

On July 7, 2021, Court No. 2 rejected the tutela action. It held that the publication of the files complied with the principle of publicity and that they were uploaded to the Judiciary’s website —created for the parties and courts’ private use. Court No. 2 considered that the fact that the documents could be found on Google was beyond its control.

The petitioner appealed before Court No. 3, claiming that her main request was not to delete the files from the Judiciary’s website, but to prevent them from being accessed through a regular Google search. She argued that other judicial dockets could not be accessed through Google, so her case showed negligence on behalf of judicial authorities.

On August 4, 2021, Court No. 3 upheld the lower court’s decision because it considered that the actions taken by  Court No. 1 on June 30, 2021, were adequate to protect the petitioner’s rights. Sofía appealed before the Constitutional Court, which accepted the case on January 31, 2022.

On May 6, 2022, the Constitutional Court adopted provisional measures in favor of the petitioner, ordering both Court No. 1 and Court No. 2 to delete from their websites all contents related to the case, until a final judgment was issued. It also requested the CENDOJ to provide the necessary technical assistance to comply with these orders.

On May 12, 2022, Court No. 2 informed to the Constitutional Court that it had deleted the content from its website, and on May 13, 2022, Court No. 1 did the same. The CENDOJ confirmed that the relevant documents were not on the website anymore. However, the Constitutional Court found that the files could still be accessed through a Google search and ordered new provisional measures. Court No. 1 did not respond; Court No. 2 informed about its compliance with the requested measures. This time, the Constitutional Court verified that the contents could not be accessed through the internet.


Decision Overview

Judge Cristina Pardo Schlesinger delivered the opinion for the Constitutional Court of Colombia. The main issue before the Court was whether the publication, on the Judiciary Branch’s website, of a docket that contained files with information about the parties’ intimate life—which could be accessed through Google—, violated the right to privacy of the people involved in them.

The petitioner claimed that when she wrote her name in Google, she was able to find a link that took her directly to the court docket. Since the files included the divorce lawsuit and its response, which included private information about her family life, she argued that her right to privacy was violated.

Court No. 1, the respondent in this case, argued that it initially rejected the request to delete the documents from its website because Decree 806/2020 ordered that notifications within judicial proceedings should be virtual. It also argued that the publication was conducted respecting the guidelines delivered by the Superior Council of the Judiciary.

At the outset of its analysis, the Constitutional Court said that the right of access to public information, and the principle of maximum disclosure, do not extend to “intimate or private personal information that has no public relevance.” [para. 94] Regarding judicial proceedings, the Court explained that, according to the right to a fair trial, judges should make sure that all the relevant parties know what happens within the process. However, this does not mean that every document should be available for public consultation, precisely because information in legal proceedings could be private and hence only interests the parties involved. Furthermore, the Court held that the right to privacy is breached when intimate information is publicly exposed. The Court also concluded that every person has the right “to keep in secret what happens within their private and family life and to exercise control over the information that affects them or that could affect their family.” [para. 131]

Subsequently, the Court found that Decree 806/2020 did not oblige judges or courts to publish complete docket files—only to make the necessary “notifications and communications” through the internet. [para. 150] Thus, it concluded that neither the right to access public information nor the principle of publicity justified the publication of the documents in this case. For the Constitutional Court, Court No. 1 should have kept the files under strict reserve because they contained private information: “the parties, based on the principle of good faith, voluntarily delivered to the Court their most intimate information, for example, what was happening within their marriage and their family, in the heart of their home.” [para. 157] Hence, the Constitutional Court ruled that the publication of the divorce proceedings’ documents violated the right to privacy of the petitioner, her family, and other people mentioned in them.

Moreover, the Court highlighted that the violation of the right to privacy “was aggravated in light of the indexation of the documents in Google’s search engine, because any person could find the files only writing the name of any of the parties involved in the process.” [para. 160] Consequently, the Court concluded that the CENDOJ was responsible and should have taken the necessary actions to prevent the content published on the Judiciary’s website from being found through Google —as ordered by Court No. 1 on June 30, 2021. For its part, the Court held that the case did not involve Google’s liability because the company was not the owner of the published content nor its creator: “Expecting Google to remove content from a website would mean forcing it to control information that is not its property, and it would violate the principle of net neutrality, which promotes the right to freedom of expression.” [para. 171]

Finally, the Constitutional Court ordered Court No. 1 to remove any file related to the aforementioned divorce proceedings—not only from its website but also from its own servers. Additionally, it ordered the Superior Council of the Judiciary to regulate in a clear, specific, and complete manner the conditions and requisites necessary to publish anything on the Judiciary Branch’s websites, ensuring that the right to privacy is respected, and to design a training plan for the administrators of the Judiciary’s websites.

Judges Pardo Schlesinger, Ibáñez Najar, and Correa Cardozo wrote their own concurring opinions. They agreed that the Court, besides finding a violation of the right to privacy, should have also declared a violation of the right to habeas data. They argued that the Constitution permits every individual to know, update, and rectify the information that has been collected about them. They claimed that the right to habeas data also includes the right to authorize the processing of data, to include new data, or to exclude or delete data from a database or a file. Hence, since Court No. 1 not only published private information but also refused to eliminate it upon request—for these three judges—there was a violation of the right to habeas data too.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

While the Court, in this case, decided to protect the right to privacy over the right to access information, it established an appropriate balance between the principle of maximum disclosure and the protection of the personal data of the parties. The present case dealt with information that belonged to the most intimate sphere of the people involved in a divorce lawsuit. It could be argued that ordering the complete removal of the docket from the internet might be disproportionate and that the protection of the right to privacy could be guaranteed by duly redacting the names of the parties or other less restrictive measures for freedom of expression. However, since the damage was already done (the documents were uploaded to the internet disclosing the full names of the parties and they were publicly available through a regular Google search), and there was no public interest in this divorce lawsuit, the judgment seems reasonable in light of international standards regarding access to information and privacy rights.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

  • ACHR, art. 13

National standards, law or jurisprudence

  • Colom., Constitution of Colombia (1991)
  • Colom., Law No. 1712, 2014
  • Colom., Law No. 1581, 2012
  • Colom., Law 1564 (2012)
  • Colom., Law 270 (1996)
  • Colom., Decree 806 (2020)
  • Colom., Constitutional Court, C-420/20
  • Colom., Constitutional Court, C-491/07
  • Colom., Constitutional Court, T-696/96

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

Official Case Documents:


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