Case Summary and Outcome

Facts

Decision Overview

Judge Gustavo Enrique Malo Fernández delivered the opinion of the Supreme Court of Justice, Criminal Chamber.

The Court had to decide whether the journalist’s claims about the former senator’s conduct as a public official, which not only mentioned alleged negative character traits but also implied that she had been involved in criminal acts, could give rise to criminal responsibility for the offense of criminal defamation.

The Court first considered the scope of the right to freedom of expression in the Colombian legal system. The Court explained that this right protects not only the right to inform and be informed, but also freedom of opinion, the right to establish media outlets, and other rights. According to the Court, there is a difference between the right to freedom of opinion and the right to inform. On the one hand, the right to freedom of opinion refers to the “constitutional protection afforded to value judgments, without corroborating them from an objective point of view.”¹ On the other hand, the right to inform protects the dissemination of information that “is close to the truth and was published in good faith.”² According to the Court, the dissemination of information of public importance is especially protected. It noted that information is of public importance when it refers to facts of public interest. In the opinion of the Court, to identify whether this condition is met, the nature of the individual and the content of the information must be assessed. The nature of the person refers to cases involving public figures or people who have a high public profile due to their jobs or because they are well-known in society. Such individuals must assume the burdens that come with their position, one of which is the possibility of criticism or negative opinions. The content of the information refers to cases where the information is “truly and legitimately of public interest based on its societal importance and impact.” [p. 28]. On this point, the Court explained that there is information about persons of public interest that is not of general interest, such as that involving the individual’s family or personal matters. The Court, based on IACtHR decisions, reiterated that speech of public importance, especially that which constitutes “political opinion,” should enjoy greater protection.

According to the Court, the media plays a key role in the expression of political opinions, because its role is precisely “to conduct oversight of political power” through this kind of speech. Precisely for this reason, the Constitution established a model affording enhanced protection for “political opinion” disseminated through the media.

In the Court’s opinion, enhanced protection for critical opinions on matters of political importance is not only enshrined in the Constitution but in international treaties. On this point, the Court referred to Art. 13 of the ACHR, Art. 19 of the Universal Declaration of Human Rights, and Art. 10 of the European Convention for the Protection of Human Rights.

For the Court, freedom of expression, information and opinion has a “higher status than all essential freedoms for the functioning of a democratic system ” subject to strict limits set by case law. [p. 48].

Within these limits, the Court explains that censorship is prohibited, but abuse of the right is subject to the subsequent imposition of liability, which must be properly regulated. It stated that Colombian constitutional case law has established six criteria that must be met if subsequent liabilities are to be imposed. “[Such liabilities shall] (1) be specifically and exhaustively provided by law; (2) seek to achieve compelling objectives; (3) be necessary to achieve these objectives; (4) be subsequent, not prior to, the speech; (5) not constitute censorship in any form, which includes the requirement to remain neutral with regard to the content of the speech in question; and (6) not have an excessive impact on the exercise of this fundamental right, that is, they shall be proportional.”³

Furthermore, the Court cited Inter-American Court of Human Right’s (IACtHR) case law, which has established that the following requirements must be met in order for a restriction to the exercise of freedom of expression to be valid: “ (i) be determined by law (ii) pursue a legitimate objective and be the most appropriate means to achieve that objective; (iii) be necessary in order to achieve the intended objective, i.e., among the different available alternatives, that the method used be the least harmful to the realization of the right; and (iv) be proportionate in the strict sense; to this end, it must be assessed whether the inherent sacrifice of freedom of expression imposed by subsequent liability is unreasonable or excessive compared to the benefits obtained by such limitation.”⁴

The Court also explained that subsequent liabilities may be civil or criminal in nature. When they are criminal liabilities, the imposition thereof must be evaluated particularly carefully. In this regard, the Court stated that the definition of the criminal offenses must strictly comply with the principle of strict legality and, therefore, the prohibited behaviors must be established “expressly, specifically, exhaustively, and in a prior manner.” [p. 53]. Given that in a democratic system, criminal law should be a method of last resort for penalizing an action, special attention must be paid to “the nature of the person whose honor or reputation is to be protected, the medium used to exercise the right to freedom of expression, and the intent with which the person who disseminated his or her opinions acted.” [italics in the original] [p.54].

On this point, the Court referred to the IACtHR judgment of Kimel v. Argentina to explain that in the case of speech against public officials or public servants, those uttering the speech are afforded a greater scope of protection. As was explained, political opinions (or opinions on matters of public importance) are essential for the exercise of democracy in a pluralistic society that seeks to ensure that State officials’ actions are transparent. In that regard, referring to the cited case, the Court noted that when an individual is accused of an alleged violation of the right to honor as a result of such statements, the following should be examined: “(i) The degree of the impact on one of the rights at stake, determining whether the degree of such impact was severe, medium, or moderate; (ii) the importance of the fulfillment of the opposing right; and (iii) whether the fulfillment of this right justifies a restriction of the other right.” [italics in the original] [p.56].

Taking into account the foregoing, the Court proceeded to study the case in question. In this regard, it considered that the statements made by the accused journalist referred to a former public official’s exercise of public duties, and that they therefore enjoyed a higher level of protection.

Moreover, according to the Court, the offense of defamation seeks to specifically protect the right to honor and reputation. Honor may be affected by the dissemination of inaccurate information or “biased” opinions on a person’s private life. A person’s reputation may be injured when there is a “distortion of public perception” due to the dissemination of false or inaccurate information. [p 67]. In light of the above, it follows that not all uncomfortable or hurtful statements may cause injury to an individual’s honor and reputation. Upon studying the content of the contested claims, the Court stated that, although they may be classified as offensive, they were not dishonorable, because the journalist’s claims did not relate to the former senator’s private life. Neither did they harm her reputation, because they did not describe the occurrence of a particular or specific event, therefore its veracity or falseness cannot be established.

The Court stated that it was not possible to consider that the claims made by the journalist were an insult to the former governor’s honor, because “whether the words are analyzed literally or examined in the context in which they were written, the fact is that neither in themselves nor as a result of the defendant’s wishes do they contain those humiliating aspects necessary to consider that the plaintiff’s honor was actually in jeopardy, or that these claims caused the effect in the community that the criminal offense seeks to punish.” [p. 70].

Based on the foregoing, the Court decided to quash the judgment and acquitted the accused of the crime of defamation.

Judge María del Rosario González Muñoz considered that from an objective point of view, the conduct in question did indeed fit the definition of the criminal offense of defamation. However, according to the Judge, there was a justification for the offender’s actions, given that his acts took place in the context of political speech, as indicated by the proportionality test of the IACtHR judgment in the Kimel case. She argued that although the words used by the defendant to describe the former governor affected her honor and reputation, the violation of these rights was moderate, because the article criticized the public official’s performance during the time in which she held the positions of governor of Cundinamarca and senator of Colombia.

In addition, she noted it is in the interest of the general public that anyone holding a public office acts honorably. In that sense, considering the “censorship” or critique made by the journalist had such a goal, it was granted the special protection given to freedom of expression in such a context. Therefore, the cause for exclusion of liability must be recognized in favor of the aforementioned, who was acting licitly, within the legitimate exercise of his right.

1. Colom., Constitutional Court, C-650/03, p. 25. ↩

2. Colom., Constitutional Court, SU-1723/00, p. 25. ↩

3. Colom., Constitutional Court, T-391/07,  p. 51. ↩

4. IACtHR., Case of Usón Ramírez v. Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 20, 2009 Series C No. 207, p. 53. ↩