Case Summary and Outcome

The Plenary of the Constitutional Court annulled a judgment issued by one of its chambers for violating the due process of law, as it failed to study matters of constitutional relevance. The case referred to the writ of amparo [tutela] filed by a furniture business owner against Google Inc and the Ministry of Information and Communications Technologies. The business owner considered that Google Inc, violated his rights to intimacy, reputation and honor because it denied his request to remove content hosted on Blogger.com, a tool owned by Google Inc. The blog post stated that he was a “fraudster” who stole money from his customers. A chamber of the Constitutional Court ruled in favor of the plaintiff and decided to protect his fundamental rights. It ordered Google Inc. to delete the blog and to remove any future anonymous blog posts with the same or similar offensive or slanderous content against the claimant without there being a prior court order. Further,  the Chamber ordered the Ministry of Information and Communications Technologies to register Google Inc. and Google Colombia Ltda in their system, since, in their opinion, the companies provide telecommunications services. The Plenary of the Constitutional Court annulled the judgement.

Facts

In January 2014, an anonymous source created a blog with the tool Blogger, owned by Google Inc., which stated that the owner of a furniture business was a “fraudster” who stole money from his customers. The business owner, John William Fierro Caicedo, asked Google on various occasions to remove the content of the blog. He stated that it was false, and that it violated his rights to intimacy, reputation and honor. Google Inc. declined the request arguing that the content of the blog was not illegal or inappropriate. Thus, the only way in which the blog could be deleted from the internet would be though a court order.

Mr. Fierro brought an action of amparo [tutela] against Google Inc. alleging the protection of his fundamental rights to intimacy, reputation and honor, and requesting an order to Google Inc. to remove the content. The first instance judge argued that Google Inc. and Google Colombia Ltda. acted only as the Blogger tool processors, hence, they could not be held responsible for the contents shared by the users.  However, the Colombian Constitutional Court selected the case for review and decided to protect the invoked fundamental rights of Mr. Fierro.

The Court’s Chamber ordered Google Inc., acting as the owner of Blogger, to delete the blog post and to remove any future anonymous blog posts with the same or similar offensive or slanderous content against the claimant without there being a prior court order. The Chamber ordered the Ministry of Information and Communications Technologies (ICT) to register Google Inc. and Google Colombia Ltda in their system, since, in their opinion, the companies provide telecommunications services. Finally, the Court exhorted the Ministry of ICT “to establish a national regulation with a view to achieving the protection of the rights of Internet users, especially in relation to abusive, defamatory, dishonorable, slanderous and insulting publications that harm a person’s honor and good name on the Internet, in order to prevent the repetition of events such as those discussed in this action […].”[p. 38]

Google Inc. and Google Colombia Ltda. and the Ministry of ICT submitted an annulment action before the Colombian Constitutional Court. Google Inc. and Colombia Ltda. argued that the steps taken by Google Ltda. are actions of the so-called information society, which differ completely from the provision of telecommunications networks and services. Also, they stated that the Court failed to analyze the case in the light of the prohibition of censorship in the Colombian legal system. Thus, forcing Google to monitor and filter information published by users of Blogger, is a form of censorship, especially as the Court intended, without authorization or court order. Google argued that it is not up to them to reconcile the right to freedom of expression and the right to honor and good name. This responsibility belongs exclusively to the judiciary. The plaintiffs further contended that the Court did not apply the tripartite test developed by the Inter-American Court of Human Rights.

The Ministry of ICT argued that the orders issued by the Court are impossible to comply with. In the first place, it is not up to the Ministry to regulate the right to freedom of expression. On the other hand, the Ministry indicated that Google Inc. and Google Colombia Ltda. are not within the entities that should be included in the ICT registry. This is because a legal person who only provides content and/ or applications is not legally called to register and be incorporated in said registry.

After analyzing the plaintiffs’ arguments, the Court found that the judgment was null and void for violating the due process of law, as a result of the failure to study matters of constitutional relevance.

Decision Overview

The Plenary of the Constitutional Court had to decide whether ordering Google to delete any future anonymous blog posts with the same or similar offensive or slanderous content against a claimant without there being a prior court order, constitutes censorship.

First, the Constitutional Court considered that the application met the formal and substantial requirements for declaring the annulment of the judgment. In Colombia, one of the grounds to request the annulment of a decision refers to the failure of the court to address relevant constitutional issues.

According to the Court, the ruling did not address the prohibition of censorship established in the Colombian legal system, which is applicable to any expression and to the dissemination of opinions and ideas. In this sense, the order imposed against Google to eliminate the future content without requiring a prior judicial order is a form of censorship that restricts the right to freedom of expression. The order, according to the Court, is impossible to comply with because “when dealing with subjective rights, there is no single rule to define what is aggravating and differentiate it from what is not- the judiciary is the branch in charge of this-.” Finally, regarding the order to monitor and filter the information posted on Blogger, the Court argued that the judgment did not analyze the limits and restrictions to the right to freedom of expression.

On the other hand, the Court found that the previous judgment should have differentiated between the author of the content and the intermediary or owner of the platform where the information is hosted. This is of paramount relevance since the responsibility of the creator of the content deemed defamatory differs from the responsibility of the Internet intermediaries who serve as means to host the alleged defamatory information.

For all of the above, the Court ruled that the lack of analysis of the previous aspects made the judgment null and void due to the constitutional relevance that they have for the resolution of the case.