Case Summary and Outcome

The Constitutional Court of Colombia found that consumers have the right to be informed about the health risks of consuming sugary drinks. The case involved a non-profit that was ordered to stop broadcasting a public service announcement describing the hazards of excessive sugar consumption. The Colombian Constitutional Court reasoned that prohibiting an NGO from broadcasting such a commercial violated the right of consumers to information and that banning the public service announcement was a form of censorship. In reaching its decision the Court referred extensively to international and regional standards, specifically those established by the Inter-American Court of Human Rights and the European Court of Human Rights, to highlight the importance of freedom of expression in a democratic society.

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Facts

An NGO, Educar Consumidores, launched a commercial in August 2016 as part of an advocacy campaign to impose a 20% tax on sugary drinks.  One of Colombia’s major producers of sugary drinks filed a complaint with the Superintendence of Industry and Commerce (SIC), the Colombian administrative authority in charge of consumer protection, arguing that the commercial was misleading.

After analyzing the commercial, the SIC ordered the NGO to take it down immediately and to send to the authority “any advertising piece related to the consumption of sugary drinks that (…) they intend to broadcast through any means of communication (…) prior to its broadcasting, so that a preventive control [could be ] carried out on the information, images, proclamations and other statement made.” This included disseminating information through social media, websites or video platforms. The SIC also barred NGO staff from speaking publicly about the links between sugar consumption and health or even about official research on the same topic, conducted by the Ministry of Health, under threat of a fine of approximately US$250,000.

Two legal petitions, actions of amparo [tutela], were initiated challenging the orders. The first amparo [tutela], filed by Educar Consumidores argued that its right to freedom of expression had been violated when the SIC censored the commercial. Also, that its fundamental right to due process was violated because the decision was adopted without proper notice of the proceedings. The SIC considered that the rights of the NGO were not violated. It stated that since freedom of expression and information are not absolute rights, they can be limited “when the general interest requires so to do it, or as in the instant case because of the lack of truth in the information [disseminated].”

The amparo [tutela] was denied by the first and second instance courts. The second instance court pointed out that freedom of expression is not an absolute right, therefore, the SIC was allowed to demand the scientific proof that supported the information disseminated. It considered that the SIC was protecting the rights of consumers to receive coherent and consistent information that allowed them to make informed consumption decisions.

The second challenge, initiated by members of the Alliance for Food Health, argued that the SIC’s orders violated the consumers’ rights to receive information about the health risks of consuming sugary drinks.

The first instance court denied the amparo [tutela] and declared it inadmissible. The amparo [tutela]  was granted in second instance by the Supreme Court of Justice. In relation to the consumer’s right to access information, the Supreme Court indicated that it consists of “empowering users to know the content of the goods and services offered in the market, guaranteeing the construction of a conscious opinion, free and informed about the quality and consequence of their use […].” In particular, the Court brought up General Comment No. 14 of the Committee on Economic, Social and Cultural Rights, highlighting the importance of information for the protection of health. In this sense, it affirmed that “the discussion about the scientific veracity of Educar Consumidores’ message […] necessarily concerns the recipients of these drinks, because they are not passive users but decision-making citizens, who […] have the right to request, receive and impart information and ideas, about the risks to which their health is exposed.”

The Constitutional Court selected the two amparos [tutelas] for review and unified them in a single case file. The Court found that the SIC infringed the petitioner’s right to due process, and the fundamental right to information, in its individual and collective dimension, when it decided to adopt measures that amounted to prior censorship. For the Court the measures were not provided by law, did not pursue an imperative need and were unnecessary.

Subsequently, the SIC requested the annulment of the decision on the grounds that it was contrary to constitutional precedent. However, on March 14, 2018, the Constitutional Court Plenary decided unanimously to uphold the decision.

 

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Decision Overview

The Court had to decide, “whether the Superintendence of Industry and Commerce violated the plaintiffs’ right to freedom of expression by submitting the dissemination of information on the consumption of sugary drinks to a prior control over their contents.” [p.25].

Based on international and regional standards, the Constitutional Court highlighted the importance of freedom of expression in a democratic society. Specifically the Court referred to the Inter-American Court of Human Rights to emphasize “the close relationship existing between democracy and freedom of expression, by establishing that freedom of expression is a fundamental element on which the existence of a democratic society is based. In this sense, it has also stated that freedom of expression is a condition sine qua non for those who wish to influence the community to develop fully, which is why it [the IACtHR] affirmed that a society that is not well informed is not fully free.” The Court also summarized the functions of freedom of expression in a democratic society: “(i) it makes it possible to seek the truth and develop knowledge; (ii) it makes possible the principle of self-government; (iii) it promotes personal autonomy; (iv) it prevents abuses of power; and (v) it is an “escape valve” that stimulates the peaceful confrontation of state or social decisions that are not shared.” [p. 34]

Referencing the European Court on Human Rights, the Court indicated that the State should not only guarantee the dissemination of information or ideas that are considered as “favorable, harmless or indifferent, but also those that offend, are ungrateful, or disturb the State or any sector of the society.” [p.33]

Citing the IACtHR, the Court recognized that freedom of expression includes “not only the right and freedom to express one’s own thoughts but also the right and freedom to seek, receive and impart all types of information and ideas.” In this sense, freedom of expression has an “individual” and “social” dimension and they must be guaranteed simultaneously, thereby constituting a right that is a “two-way street.” [p.36]

In addition, the Court reiterated that freedom of expression is not an absolute right but only allows for narrow limitations in debates on matters of public interest . Specifically, “[…] any limitation on freedom of expression is presumed suspect, so it must be subject to a strict scrutiny constitutionality test, which requires verifying that the restriction that is intended to be imposed: i) is provided by law; ii) pursues the achievement of compelling aims that should be related to respect for the rights of others or the protection of national security, public order, public health or morals; iii) is necessary for the accomplishment of those aims; and iv) does not impose a disproportionate restriction on the exercise of freedom of expression. Additionally, it is necessary to verify that v) the restrictive measure is subsequent and not prior to the expression subject to the limitation, as well as that vi) it does not constitute any type of censorship, which includes the requirement of being neutral with respect to the content of the expression that is being limited.” [p. 39]

The Court pointed out that both the American Convention on Human Rights and the Colombian Constitution proscribe prior censorship. It stated that prior censorship can happen in different ways, ranging from express prior authorization regimes to more subtle and indirect methods. These can be grouped into four main forms of control: i) over the media and their work; ii) on the content of the information; iii) on access to information; or iv) about journalists [p. 42].

Also, the Court stressed that the protection of freedom of expression and its respective limits apply to the internet and social networks in the same way as to other media, so any restrictions must be analyzed in light of the same standards [p. 43].

In the instant case, the Court decided to apply a strict scrutiny test due to the importance of the right to inform and consumers’ right to receive information. These rights, according to the Court, serve several essential functions: “i) guarantee the right of consumers to the relevant information on the food products they consume, giving meaning to the essential core of their right to information; ii) enable consumers to freely choose the food products they wish to consume, according to their own life orientation, thus respecting the essential core of the consumer’s right to choose; (iii) guarantee the protection and prevention in health issues, by admitting the presumed or eventual risks linked to aspects of the development of these products that are unknown to date by society, based on the precautionary principle. [and] (iv) have an instrumental function, by facilitating the monitoring of these products by the corresponding authorities.” [p.48]

The Constitutional Court found that the commercial did not advertise any product. On the contrary, it was part of a public health campaign that sought to warn about the health risks of excessive consumption of sugary drinks.

As a result, the Court determined that the measures adopted by the SIC were not provided in the law, since the Statute of the Consumer does not empower the SIC to carry out any type of prior control over information as a preventive measure. The measure adopted did not pursue an imperative need because the alleged protection of consumers’ right to information was based on a sophism “to believe that the people who are the target of the campaign are not decision-making citizens with the ability to discern and form their own criteria.” Finally, the measure was  unnecessary, as there were other less harmful measures.

Additionally, the Court found that the measure adopted constituted prior censorship by establishing prior control over the content intended to be transmitted.

The Court, granted the amparo [tutela] of Educar Consumidores over its rights to inform and to due process and confirmed the decision of the Supreme Court of Justice that protected the rights of consumers to receive information.

 

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