Defamation / Reputation
Afanasyev v. Zlotnikov
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The Colombian Supreme Court ruled that a politician who had referred to a journalist as a “child rapist”, “abuser of children” and a “child pornographer” on Twitter had violated the journalist’s right to honor and reputation. The tweets were in response to articles in which the journalist had mocked the name of the newborn daughter of a congresswoman. The Court held that the language used by the politician was not a proportionate way to defend the rights of the congresswoman’s daughter and unjustifiably infringed the fundamental rights of the journalist.
On May 13, 2017 a Columbian journalist, Daniel Samper Ospina, published an article in the Semana magazine in which he wrote about a number of members of the political party led by the former president of Colombia and current senator Álvaro Uribe Vélez. He also mentioned the name of the newborn child of a congresswoman, expressing in a satirical way that the kid “will be a heroin, like her mom”, and later said [h]opefully God will take care of her and she will have a boy … His name could be Opium ” [para .1.1].
On May 17, 2017 Senator Uribe Vélez posted on his personal Twitter account that Samper Ospina was “a child abuser (…) who pretends to be a clown, but he instead offends this profession then humbly entertains the children” [para. 1.2].
Soon after, a citizen wrote a letter to Semana magazine saying that he unsubscribed from the magazine because he believed that an article written by Samper Ospina on June 18, 2017 was offensive towards the Colombian department of Antioquia. On July 14, 2017, Senator Uribe Vélez tweeted about the citizen’s letter and called Samper Ospina a “child rapist” [para. 1.3]. Two days later, the Senator broadcast a speech recorded on video in which he stated that Samper Ospina “mistreated a three-month-old girl, made a public association of her name with illicit drugs, and attacked the honor of her mother and family”. Later, he added that the journalist “made pornographic publications with minors, in some cases in order to attack a priest, and in others with nude photographs of women under the age of 18 when he worked at Soho magazine [para .1.5]
Samper Ospina brought an action of amparo (an application for the protection of constitutional right) against Senator Uribe Vélez, arguing that the protection of his rights to reputation, honor and rectification were infringed by the Senator’s public comments. He submitted that these comments were not only defamatory but also threatened his life and his reputation as he had received threatening messages via Twitter following the Senator’s tweets.
The first instance judge held that Samper Ospina’s rights had been violated, finding that Senator Uribe Vélez’s statements exceeded the protection of freedom of expression as they were defamatory statements stating that Samper Ospina had committed sexual crimes against minors. The judge noted that Senator Uribe Vélez’s position as a congressman gave him power to “create and drive the political opinions of the citizens” [para. 2.1].
Senator Uribe Vélez appealed the judgment, arguing that he had referred to Samper Ospina only as an “aggressor of the rights of children” and not that he abused children [para. 3.1]. He argued that the word “abuser” does not refer only to sexual crimes but can be used to mean “diminishing or removing someone’s reputation, or the value and estimation of something”. The Senator also submitted that the focus of the litigation should be the violation of the rights of the congresswoman’s daughter who had been named in Samper Ospina’s first article and that Senator Uribe Vélez was simply trying to protect the child.
The main issue before the Supreme Court of Colombia was whether Senator Uribe Vélez’s statement that Samper Ospina was a child rapist was protected under his right to freedom of expression on the grounds that he had sought to safeguard the rights of a child, or whether the statement infringed Samper Ospina’s right to honor and reputation.
The Court noted, with reference to the Colombian Constitutional Court’s decision T-088/13, that the right to reputation is understood as “the concept that others have about a person and that may be infringed as a result of offensive or insulting expressions or false or biased information”. The Court also defined the right to honour, by referring to a Constitutional Court decision, T-022/17, as “the estimation or deference under which every person should be considered by other members of the community that know him and treat him, by virtue of his human dignity”.
The Court acknowledged that both rights – to reputation and to freedom of expression – may be implicated when a person is the subject of another person’s expression of opinion and that the two rights must be balanced in determining which constitutional guarantee should prevail.
In the present case, the Court held that there had been a violation of Samper Ospina’s right to honor and reputation after being described as a rapist and child pornographer as the Court commented that this constituted “an unambiguous attribution of responsibility as a sex offender” [para. 220.127.116.11]. It noted that Senator Uribe Vélez could not rely on his explanation that his intention was to refer to Samper Ospina as an aggressor of children’s rights instead of a rapist as the word “rapist” is typically associated with sexual offenses in the Colombian context.
The Court emphasized that Senator Uribe Vélez, as a former Colombian president and current senator, holds the position of an individual of public importance whose influence on citizens is significant, and who knows the importance of language in influencing public opinion. Accordingly, the Court held that the use of the word “rapist” by the Senator was reprehensible and disproportionate behavior and it disregarded the supposed ambiguity of the expression. The Court held that the words used by Senator Uribe Vélez were not protected under the right to freedom of expression since “the attribution of criminal liability to someone implies affirming that he committed a crime, in this case of sexual nature against under age victims “[para.18.104.22.168]. The Court added that there was no evidence that Samper Ospina committed such crimes.
In responding to the Senator’s claim that he was protecting the rights of the congresswoman’s daughter, the Court noted that the Senator should have used the correct legal avenues to determine whether the child suffered a violation of her rights after the publishing of the article in the Semana magazine. The Court also stressed that this was not the main concern of the Court in this specific case.
The Court applied a proportionality test in balancing Samper Ospina’s right to honor and reputation and Senator Uribe Vélez’s right to freedom of expression. The Court held that the means utilized by the Senator to defend the child were not suitable because the child’s rights could not be restored with the unfounded assertion that someone else is a child rapist. The Court also held that there were less intrusive means that could be used to protect the rights of the child, and that the Senator’s statements were therefore not necessary.
The Court referred to the Inter-American Court of Human Rights case of Kimel v. Argentina, ser. C No. 177 (2008) which held that “public officials should be more tolerant of criticism from individuals” because “in the domain of political debate on issues of great public interest, not only is the expression of statements which are well seen by the public opinion and those which are deemed to be harmless protected, but also the expression of statements which shock, irritate or disturb public officials or any sector of society”. The Court stressed that the Senator must remember that, as a political leader, he cannot exceed these limits of tolerance, and noted that, in accordance with the case, Colom., Sup, AP8402 (2016), using social networks to disqualify his critics “does not contribute to his duty of social union”.
The Court held that Samper Ospina’s right to reputation and honor had been infringed by Senator Uribe Vélez’s tweets, and ordered the Senator to delete the relevant tweets and to refrain from publicly referring to Samper Ospina using offensive statements.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Supreme Court in Colombia acknowledged that the right to freedom of expression protects the dissemination of unpleasant or irritating expression. However, the Court held that as freedom of expression is not absolute the use of language implying that an individual is a child rapist is not protected by the right and that the right to honor and reputation outweighs the right to freedom of expression in such a case.
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