Case Summary and Outcome

The Constitutional Court of Colombia issued a tutela decision in a case against Google and the newspaper EL TIEMPO. The Court ruled that the newspaper must update certain information regarding an individual’s involvement in a criminal investigation. The Court, however, absolved Google of any liability, noting that it acted solely as an intermediary. The case arose when the individual sought to prevent access to an online news article detailing her alleged involvement in the investigation. Although the information was accurate at the time of publication, the proceedings were later discontinued, and she was not found guilty by a judge. The Court reasoned that the newspaper should update the information on its website and implement a technical tool to prevent search engines from linking the article to her name.

Facts

In the year 2000, a citizen working as a ticket seller for a travel agency was linked to a human trafficking ring. That same year, the newspaper EL TIEMPO published an article titled “Empresa de Trata de Blancas” (Human Trafficking Company), which mentioned her name among others involved in the criminal proceedings for this crime. This article was accessible through Google’s search engine. In 2008, the statute of limitations on the criminal action was declared in her favour.

In 2012, the individual requested that EL TIEMPO remove the article from its records. However, the newspaper refused, asserting that its content was “truthful.”

The individual argued that her rights to honour, good name, and privacy were violated, as the online article did not clarify that she had never been found guilty by a judge. She further stated that the article’s availability online led to multiple “traumas,” including difficulties in conducting financial and commercial transactions due to ongoing stigmatization. She therefore sought a judicial order to have the article removed from the newspaper’s website and search engines.

The first-instance judge upheld her rights, ordering that the information be rectified to inform the public that she had not been found guilty, though the judge ruled against removing the information entirely. On appeal, the second-instance tribunal directed the newspaper to remove all negative information about her related to human trafficking.

The Constitutional Court subsequently reviewed the case ordering the newspaper to update the published information and use a technical tool to restrict access to the article via search engines. The Court absolved Google of any liability, recognising its role as a mere intermediary.

Decision Overview

The Constitutional Court delivered a judgment considering whether an online news article about an individual’s involvement in a criminal investigation should remain accessible without updating, given that the criminal action had reached the statute of limitations without a guilty verdict.

The Court addressed three main legal issues. First, whether the incomplete information published on a media outlet’s website about the individual’s arrest and involvement in criminal proceedings for human trafficking violated her rights to honour, good name, privacy, and due process, as the news article failed to inform readers that she was never found guilty due to the statute of limitations. [p. 9] Second, whether the indexing of this article by Google’s search engine violated her fundamental rights. [p. 9] Third, if a rights violation was found, what constitutional remedy would appropriately balance these infringements with freedom of the press, expression, and information. [p. 10]

Referring to international norms, including the UN Human Rights Committee’s General Comment No. 34, the Court highlighted the role of freedom of expression as essential to democracy and individual development. The Court reiterated that “restrictions on freedom of expression on the Internet are only acceptable if they comply with established international standards.” [p. 22] The Court underscored the UN’s guidance that limitations must be “provided by law, pursue a legitimate aim, and be necessary” [p. 18] under Article 19 of the ICCPR.

The Court also recognised the Internet’s critical role in safeguarding freedom of expression and noted five attributes shaping it as an ideal forum: access freedom, diverse information formats, decentralized production and consumption of information, real-time interaction, and neutrality of shared information. [p. 19] Citing principles from the Inter-American Commission on Human Rights, the Court emphasized that attributes like net neutrality protect freedom of expression by avoiding “blocking, interference, or filtering.” [p. 22] Furthermore, it stressed that holding intermediaries like Google liable for user-generated content could undermine these protections by turning them into censors of information. [p. 23]

The Court then examined the relevance of the Habeas Data Act, which includes provisions on personal data protection but exempts journalistic databases, as specified in Article 15 of the Constitution. While the Act does not apply to media outlets, the Court reasoned that the right to update information protects against outdated, incomplete content that might otherwise harm individual rights.

The Court highlighted the duty of media to ensure truthful, impartial news reporting, particularly about judicial matters, by updating articles to reflect any legal outcomes. The failure to update this information over time undermined its truthfulness, diminishing the right to information’s protection. Media outlets, the Court stated, should promptly update content if a judicial proceeding reaches a conclusive outcome, such as a verdict of guilt, innocence, or case dismissal.

Additionally, the Court observed that when public relevance declines over time, full public access to certain information through search engines may be disproportionate. In these situations, it may be necessary to restrict access. [p. 50] Accordingly, the Court recommended balancing conflicting rights through the three-part proportionality test outlined in the Inter-American Human Rights System.

The Court assessed whether the second-instance ruling to delete the article was necessary or if less invasive measures could still protect the plaintiff’s rights without infringing freedom of expression. The Court found the first-instance order for rectification insufficient to uphold the plaintiff’s rights but determined that the second-instance remedy was disproportionate.

In addressing Google’s responsibility, the Court rejected the idea of ordering Google to de-list the content, distinguishing this case from the Costeja case Google Spain SL v. AEPD, as Google’s indexing did not originate the content and blocking access would breach the principle of net neutrality. [p. 46] Imposing content removal obligations on Google risked turning it into a “censor or regulator” of online information, which would conflict with the Internet’s architecture and values of equal access, non-discrimination, and pluralism. [p. 46]

As an alternative, the Court recommended technical tools, such as “robots.txt” or “metatags,” allowing webmasters to restrict specific content from appearing in search engine results. This approach balances the right to information with the plaintiff’s right to a good name, without erasing the historical record. The Court specified that such measures apply in cases where online content about criminal proceedings remains readily accessible over time.

The Court clarified that access to information on public officials, crimes against humanity, or severe human rights abuses should not be restricted, as these issues contribute to national historical memory and surpass individual interests. [p. 50] Given that none of these exceptions applied, the Court ordered El Tiempo to update the article to reflect that the plaintiff was never found guilty and to use technical measures to limit its visibility on search engines.

In conclusion, the Court upheld the plaintiff’s rights, mandating El Tiempo to update its article to clarify that the plaintiff was not convicted [p. 52] and to implement a technical restriction to prevent search engines from linking her name to the article.

In a dissenting opinion, Justice Mauricio González Cuervo argued that imposing an obligation on the media to update articles on judicial events risks infringing on freedom of expression and press freedom. He contended that this measure fails to meet the strict proportionality test required by the Constitution and improperly deviates from precedent without justification, potentially impeding media rights to provide unaltered historical records.