Defamation / Reputation, Press Freedom, SLAPPs
VanderSloot v. Mother Jones
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The Constitutional Court of Colombia considered that journalists Catalina Ruiz-Navarro and Matilde de los Milagros Londoño did not breach the right to honor, good name, and presumption of innocence of movie director Ciro Guerra, by publishing an article in which eight women accused him of sexual harassment and sexual abuse, nor by providing further commentary about the article in subsequent interviews. Guerra lodged a constitutional action against the journalists seeking a retraction or the removal of the article from the internet. The Constitutional Court reviewed the case and considered that feminist journalism, “escrache” (type of protest to expose perpetrators), and expression regarding gender-based violence, benefitted from special constitutional protection. Additionally, the Court considered that Ruiz-Navarro and Londoño’s investigation was truthful and rigorous and discussed issues of public relevance and interest. Moreover, the Court also considered that in light of the power imbalance between the parties and Guerra’s disproportionate claims in several judicial and extrajudicial proceedings, there were elements of judicial harassment against the journalists.
On 24 June 2020, Catalina Ruiz-Navarro and Matilde de los Milagros Londoño Jaramillo published, on the web portal of the media outlet “Volcánicas”, a story titled “Eight accusations against film director Ciro Guerra for sexual harassment and sexual abuse”. The article, published in English, Spanish, and French, showcased the testimonies of eight women who were, allegedly, victims of inappropriate behavior by Colombian movie director Ciro Guerra.
The story was the product of a 5-month investigation in which Ruiz-Navarro and Londoño interviewed the affected women and those who had indirect knowledge of the events. The article also featured screenshots of Whatsapp conversations and Uber trajectories.
The journalists called Guerra to interview him before publishing the story and asked him if he ever harassed any women or took a prevention course against sexual harassment. He said he had not harassed any women and that he had taken a seminar on the subject.
In the published article the names of the victims were changed to protect their identity and privacy and to prevent retaliations. In addition to the testimonies, the journalists also made assessments about Guerra’s behavior which they characterized as sexual harassment and sexual abuse. Ruiz-Navarro and Londoño also considered that Guerra took advantage of his position as a filmmaker to intimidate victims and prey on them.
After the article’s publication, Ruiz-Navarro was interviewed by several media outlets. In them, she referred to Guerra as a sexual harasser and abuser, argued that he should not be allowed to direct more movies, and that a criminal complaint is not needed to refer to someone as an abuser, nor does criminal justice have a monopoly over what is true.
Guerra initiated several proceedings against Ruiz-Navarro and Londoño. On 2 July 2020, he lodged a criminal complaint for defamation against the journalists, asking 150.000 U.S. dollars for damages. On 26 January 2021, Guerra submitted a civil action against Ruiz-Navarro and Londoño. In it, the director requested 875.000 U.S. dollars and 158.538.272 pesos for damages. He claimed that due to the accusations in the story, two movie projects he was involved with were canceled.
On 18 December 2020, Guerra lodged an acción de tutela —a constitutional claim— against Ruiz-Navarro and Londoño, arguing that his rights to a good name, honor, and presumption of innocence, were breached by Volcánica’s article and Ruiz-Navarro’s subsequent interviews. Guerra said that the respondents accused him of criminal conduct, something that freedom of expression and opinion does not protect. The filmmaker also held that the journalists failed to be impartial since they presented a skewed version of what happened by showing Guerra’s testimony at the end of the article or by not presenting other sources regarding Guerra’s whereabouts when the events happened. In this claim, Guerra requested the article’s removal from Volcánica’s web page and social media, a retraction of all statements accusing Guerra of sexual abuse and harassment, and an injunction ordering the respondents to refrain from ever publishing any accusation against Guerra regarding the criminal events described in the 24 June 2020 article.
On 4 March 2021, the Fifth Circuit Criminal Judge of Bogotá rejected Guerra’s acción de tutela. According to the judge, the journalists only showcased the testimonies of the alleged victims and commented on this situation, thus exercising their freedom of expression without infringing on the applicant’s rights. Moreover, the judge claimed that the criminal proceedings for defamation, already in progress, were the most appropriate procedural path to resolve the conflict presented by Guerra.
On 26 June 2021, The Criminal Hall of the Superior Tribunal of Bogotá overruled the first instance decision issued by the Fifth Circuit Criminal Judge of Bogotá. According to this tribunal, Ruiz-Navarro and Londoño failed to abide by the principles of impartiality and veracity because the respondents did not grant Guerra the opportunity to provide his point of view since he was not adequately informed about the specific events and accusations against him. The court also held that some parts of the article lead the audience to believe that Guerra had been criminally convicted. Thus, it ordered the respondents to rectify the information in their story by abiding by the principles mentioned above.
On 29 October 2021, the Constitutional Court of Colombia selected the case for review.
Justice Diana Fajardo Rivera delivered the opinion for the First Review Hall of the Constitutional Court of Colombia. Regarding freedom of expression, the Court identified two main issues. First, the Court had to determine whether journalists “Catalina Ruiz Navarro and Matilde de los Milagros Londoño —directors of Volcánicas— infringed upon Ciro Guerra Picón’s fundamental rights to a good name, honor, and presumption of innocence, by publishing the article ‘Eight accusations against film director Ciro Guerra for sexual harassment and sexual abuse’ —in the web portal of Volcánicas, a feminist media outlet—” [para. 167] and by granting interviews to other national media outlets discussing its content; or if, on the contrary, they exercised their freedom of expression by legitimately disseminating information of public interest. The Court also analyzed whether the proceedings brought by Guerra against the respondents could be considered judicial harassment.
Guerra’s defense, in addition to the arguments presented in previous instances, mentioned that the media, or public opinion, could not act as tribunals and that only judicial authorities, after the proper procedures were enacted, had the prerogative of deciding who is held liable. The applicant also said that the journalists misrepresented the truth, not only in their article but in subsequent interviews about it in other media outlets. The film director considered that Ruiz-Navarro and Londoño were not impartial or veracious and breached his presumption of innocence.
The respondents argued that their article was the result of a 5-month investigation that did not intend to harm Guerra’s professional life, but rather to focus on the victims’ testimonies, whose identities were not disclosed to protect them against stigmatization. They also mentioned that Guerra was given the opportunity to present his version of the story and that the journalists confirmed the circumstances in which the events took place with several sources, in line with current journalistic standards. Ruiz-Navarro and Londoño explained that Volcánicas is a digital media outlet dedicated to covering issues of public interest such as gender-based violence.
Moreover, the respondents opposed the argument that the media is not allowed to make statements about issues of public interest prior to a judicial decision. According to them, this would have a devastating effect on investigative journalism and sexual violence accusations, in contexts where proving them is juridically complex, the judicial system has failed to prosecute them successfully, women who make these accusations are stigmatized by public opinion, and the impunity rate for these crimes is high.
The respondents’ defense claimed that their work is protected under the right to freedom of expression and that accepting that journalists can only hold opinions or conduct research after judicial investigations are concluded hinders democratic press and the type of journalism that seeks to give voice to those most affected by society, in this case women who —in a vulnerable and subordinate position— were victims of gender-based violence.
The respondents also said that Guerra has disproportionally abused the legal system to silence and intimidate them since he has used multiple judicial mechanisms (civil, criminal, and constitutional proceedings) to censor their article.
The Court studied first if the acción de tutela was admissible. For that, it analyzed the standing of the respondents. The Court said that this type of constitutional action proceeds only under certain exceptions against private individuals. Nonetheless, pursuant to Decree 2591 of 1991, article 42.7, an acción de tutela can be lodged against media outlets. The Court held that although the respondents are private individuals, they also own and manage Volcánicas, the digital media outlet in which the article was published. Thus, the Tribunal considered that Ruiz-Navarro and Londoño had standing in this case.
The Court also said that this matter was constitutionally relevant since the applicant alleged a breach of his constitutional rights which he sought to protect. The Court noted that Guerra did not seek, in the context of this proceeding, civil or criminal remedies. Moreover, the Constitutional Court considered that the fact that the applicant had lodged criminal and civil procedures does not displace the possibility of seeking constitutional remedies.
Before examining the case, the Court extensively summarized its opinion on constitutional matters that it deemed relevant to solve the case. The Tribunal explained that freedom of expression is a multifaceted human right that entails both the right to communicate opinions, thoughts, or ideas and to disseminate and receive them.
The Court highlighted that freedom of expression has a collective dimension which includes the people’s right to receive information. Freedom of information aims at “communicating aspects of the world that can be verified.” [para. 174]. Hence, this right must abide by the principles of impartiality and veracity.
These principles, and the exercise of freedom of information, posit the idea that it is possible to “transmit, narrate, or tell facts that happened” [para. 175]. Nonetheless, the Court explained that the truth is an epistemically complex issue. As a consequence, veracity and impartialness are duties that must be understood reasonably and are fulfilled when there is a sufficient degree of effort in the verification of facts. The Tribunal also acknowledged that the difference between information and opinions is rarely absolute and their borders are often diffuse: separating them “could lead to an intense restriction on freedom of expression” [para. 177].
Regarding freedom of expression, the Court also considered that this right is prevalent when it collides with others and that restrictions on it are presumed unconstitutional and, accordingly, must be subjected to a strict proportionality test —i.e. the measure must be prescribed by law, necessary to pursue a legitimate aim and must not excessively restrict freedom of expression.
Following its own jurisprudence laid out in decision T-391/2007, the Court also mentioned that freedom of expression protects the content, the tone, and the form of the expression. Written, oral, digital, or analog means of expression are protected just as shocking, unusual, and offensive expressions are. The Court also mentioned that in Colombia censorship, in general, is forbidden. It follows “a higher standard than the one set forth in International Human Rights Law which prohibits prior restraints” [pars. 188] because it is the most severe violation of freedom of expression and affects the constitutional regime. However, this right is not absolute. Following the aforementioned decision, there are five prohibited forms of speech: “incitement to genocide, hate speech, war propaganda, apology for crime, and child pornography” [para. 195].
Freedom of expression can be limited,—the Court explained— when in conflict with other rights, but as said before, this must be done after a careful balancing exercise.
The Court then said that there are specially protected forms of speech whose restrictions are considered particularly suspicious. Expressions on political matters or issues of public interest; speech about public officials or candidates for office; artistic and religious expression; peaceful protest and correspondence; advocacy for diverse sexual identities and the defense of gender equality and the eradication of gender-based violence (as stated in decision T-289/2021), all benefit from special constitutional protection.
Furthermore, the Constitutional Court also argued, —in line with the jurisprudence of the ICtHR in cases such as Ivcher Bronstein v. Perú, Mauricio Herrera Ulloa v. Costa Rica, Ricardo Canese v. Paraguay, and Kimel v. Argentina— that people who have influence over matters of public interest “have exposed themselves to a higher degree of scrutiny and are more exposed to criticism since their activities escape the private domain and are part of public debate” [para. 198].
Subsequently, the Court discussed about press freedom specifically. To it, the press fulfill several duties within democracies, such as providing education, promoting civic debate and dialogue, and acting as a public watchdog.
Then the Tribunal explained, based on the criteria laid out in Granier (Radio Caracas Televisión) v. Venezuela (IACtHR) and Verlagsgruppe Droemer Knaur Gmbh & co. Kg v. Germany (ECtHR), that the principle of veracity does not demand information to be irrefutably true, rather that it was checked and contrasted with sources and that there’s no intention in disseminating false findings and no malice towards harming others’ rights to honor, privacy or good name. For its part, the principle of impartiality is fulfilled when information is presented in a complete manner.
The Constitutional Court mentioned that although censorship is forbidden, ulterior liability or subsequent penalties are permitted. Civil and criminal liability can be imposed when freedom of expression is abused. Nonetheless, the Court argued, severe sanctions are prohibited since they can have a chilling effect leading to censorship or self-censorship.
The Tribunal held that privacy, honor, and good name benefit from constitutional protection under article 15 of the Political Constitution of Colombia. Despite that, the Court noted, following decision SU-1723/2000, that freedom of expression takes precedence over the aforementioned rights unless there is evidence that false, partial, incomplete, or inexact facts were presented with harmful intentions toward fundamental rights.
The nature of the disseminated information, the degree of dissemination of the information, the means used to disseminate it, and the position within society of the person whose rights are affected, are all relevant criteria, according to the Court, to bear in mind when analyzing specific cases where freedom of expression collide with rights such as privacy, honor, and good name.
Regarding the presumption of innocence, the Court opined that journalists should abstain from asserting that people have been criminally convicted if there’s no judicial decision on the matter. Additionally, the Tribunal held, journalists must be rigorous with language “and adopt conditional and dubitative linguistic forms” [para. 242] when referring to persons who have not been sanctioned by the judicial system. Having said that, the Court —in line with its jurisprudence in cases like T-040/2013, SU-274/2019, and T-275/2021— considered that media outlets have “the right and duty of publicly denouncing irregular situations that they know of” [para. 242] without having to wait for a judicial decision to report about a crime because “the truth is not an exclusive domain of public powers” [para. 242].
Subsequently, the Court mentioned that some forms of speech benefit from special protection due to their importance and impact. Such is the case of expression that serves to portray and expose gender-based violence against women. Following decisions T-239/2018 and T-361/2019, the Tribunal held that gender-based violence is a matter of public interest and discussion around this issue seeks to vindicate the human rights of a traditionally marginalized group. Hence, protecting this speech helps fight discrimination.
Moreover, the Court also mentioned General Recommendation No. 35 on gender-based violence against women by the Committee on the Elimination of Discrimination against Women (CEDAW). According to it, states must encourage reporting on gender-based violence against women and promote and strengthen judicial mechanisms to prosecute sexual harassment and abuse.
The Court then mentioned, abiding by the precedent it set on decision T-275/2021, that “the Constitution protects the right of women to make accusations on social media when they are victims of discrimination, violence, harassment, and abuse” [par. 254]. These accusations, the Court held, contribute to the prevention and prosecution of women’s rights violations. The Tribunal also considered that these accusations should not be silenced, especially when considering the barriers women have to confront to access judicial remedies. Therefore “society and the state have to protect women who use online social media as an ‘exhaust valve’ when judicial or administrative measures are not sufficient, apt, safe and quick” [para. 254].
Referring to decision T-289/2021, the Constitutional Court argued that the principles of veracity and impartiality are more flexible regarding a person who tells a personal experience, “particularly if she was the victim of a crime” [para. 258]. In such cases, the Court considered that women who tell their stories should not be obliged to use conditional tenses, express skepticism, or be confronted with their aggressor. Furthermore, when evaluating the tension between freedom of expression and the right to honor and a good name, judges should take into consideration the good faith of the victim and the special protection given to expression about gender-based violence.
The Court too highlighted the importance of women in media. Citing decision T-140/2021, it argued that women in journalism foster diversity and strengthen democracy, and “enable juridical, political, social, economic and cultural transformations that are indispensable to eradicate discrimination and violence against women” [para. 264].
The Tribunal then analyzed the “escrache,” “a feminist strategy of making known to the public episodes of harassment and sexual abuse” [para. 289] and exposing aggressors, usually through accusations on social media or through public demonstrations. The Court considered that the escrache helps build support networks and prevent new acts of violence “by informing other women about the dangers they have faced” [para. 280].
In addition, the Court considered the escrache as a form of protest and an artistic expression whose intention is to bring to public debate matters that have been hidden: “to escrachar is to bring to light something unknown about someone, an action that seeks to name that which is unspoken, an invitation to society to speak about uncomfortable issues yet necessary to transform it in a space ridden from violence” [para. 288].
As such, the Court said, the escrache and feminist journalism are allies who share a common agenda. The Tribunal held that feminist journalism has the mission of “highlighting the role of women, and other traditionally marginalized groups, in society and report about acts of violence against them” [para. 292]. The Court then contested the idea that journalism must be neutral, particularly in relation to human rights and women’s rights. For it, it is natural that the media, on account of their autonomy, defend politically diverse ideas, as long as they are professionally rigorous.
On the topic of judicial harassment, the Court opined that its purpose is to silence expression, usually on matters of public interest, through the abuse of the judicial system; often the harasser has abundant resources to pay for judicial representation and to cover legal expenses. In addition, in cases of judicial harassment, there’s a power imbalance between parties in which the more powerful one “makes impossible to satisfy demands, especially excessive monetary damages compensations” [para. 305]. The Court too underscored the fact that judicial harassment also conveys a warning message to other citizens to keep silent, that is, it has a chilling effect on expression.
After detailing the aforementioned legal framework, the Court analyzed the case at hand. The Court began by highlighting the professional background of Ruiz-Navarro and Londoño as journalists and feminist advocates, reporting on sexual harassment and sexual abuse, as well as other issues that affect mainly women and the LGTBI community. Then it characterized the article “Eight accusations against film director Ciro Guerra for sexual harassment and sexual abuse” as one that collects “the voices, thoughts, feelings, and emotions of eight anonymous women whose existence will not be questioned by the Court” [para. 321].
The Court explained that its analysis will be done through a gender perspective —aware of the important social role of feminist journalism against patriarchal institutions— that takes into consideration the “power imbalance between parties and that Volcanica’s voice reproduces other voices protected by the Political Constitution” [para. 323].
For the Court, the contested article gathered eight testimonies from women regarding “situations in which Ciro Guerra Picón made approaches, uttered expressions or carried out actions of a sexual nature, without their consent” [para. 326]. The Tribunal highlighted that five of those testimonies were told with a high degree of detail. Screenshots of Whatsapp conversations and the Uber app, along with testimonies from close friends of the victims, are used in the article. After each testimony, Ruiz-Navarro and Londoño make editorial comments to highlight Guerra’s behavior patterns, thus “weaving a complex narration about how power imbalances, employment offers, fame, and name-dropping within the social circle of audiovisual media lead to the reported events” [para. 328].
To further the understanding about conflicts in matters related to freedom of expression, the Court analyzed these criteria: (1) Who communicates, (2) about whom or (3) about what, (4) to whom is the information communicated, and (5) how it is communicated.
Regarding the first question, the Court held two feminist journalists wrote the article for Volcánicas, an independent digital media outlet that covers relevant matters concerning gender and feminism. The Tribunal mentioned, to answer the second and third questions, that the article communicated accusations of sexual harassment and sexual abuse — a topic of social and political relevance related to women’s rights to a life free from violence and discrimination — against Ciro Guerra Picón, a well-renowned movie director.
With respect to the fourth question, the Court considered that Volcánicas is an open media outlet for everyone whose access is free. Its audience is composed of “people interested in feminism and discussions around gender issues” [para. 351]. To answer the fifth question, the Court mentioned that Volcánicas communicated through a work of investigative journalism published by an independent and feminist media outlet. The article was disseminated in three different languages to reach a wider audience. The Court underscored the fact that in the article it’s easy to distinguish between the victim’s testimonies and the editorial comments made by the journalists. Moreover, the Court noted, the article allocated “space for the transcription of the phone call made to Ciro Guerra” [para. 352].
Then, the Court mentioned that a higher degree of scrutiny is permitted regarding public figures like Guerra, who has achieved significant social recognition in light of his work. His movies have been nominated for an Oscar and he has “received public funds to make [them] and has represented the country in different film festivals around the world” [para. 356]. Furthermore, the Tribunal reiterated that expressions that vindicate feminism and gender issues benefit from special protection, particularly when it deals with “harassment, abuse and sexual violence. [These issues] are not only a matter of public interest but are indispensable to understanding structural discrimination” [para. 355].
Upon analyzing one by one each of the testimonies presented in the article and their respective editorial comments, the Court argued that they did not breach Guerra’s rights. The Court considered that the structure of the article allowed readers to distinguish between the victim’s voices from that of the journalists. The Tribunal held too that the testimonies and editorial comments, due to the topic they concern, benefit from special constitutional protection and that the veracity principle was fulfilled by the journalists whose research work and subsequent opinions denote rigor and trustworthiness.
The Court also said that journalistic endeavors should not be conditioned by “the existence of a criminal decision issued by a judge since this would empty the purpose of whistleblowing journalism and the preventive function of the escrache and feminist journalism” [para. 373]. Hence, media outlets do not have to wait for a judicial decision to report, and exercise their freedom of expression, on public interest matters.
The Tribunal observed, yet again, that the information included in the article was a form of protected speech relevant to the creation of safer spaces for women. The accusations in the article, the Court held, allow readers to properly understand “how power asymmetries lead to situations that are impossible to resist for victims, including not only acts of physical imposition […] but also mental and psychological ones, using a dominant position on the work field and public recognition […] to intimidate and pressure victims” [para. 389].
The Constitutional Court held that the respondents did not intend to harm the plaintiff but rather to bring to the public debate accusations that were well documented and abided by current journalistic standards, regarding violence against women in a context where this issue is very relevant considering that “in Bogotá, the rate of sexual violence increases annually by 8.86%, with women accounting for the highest percentage of victims (more than 80%)” [para. 390]. Thus, in the opinion of the Court, Ruiz-Navarro acted without real malice and reported on a matter of public interest.
Regarding the interviews granted by Ruiz-Navarro to several media outlets, the Court held that these did not breach Ciro Guerra’s rights either. To reach this conclusion, the Court took into consideration the fact that (1) the statements were issued by a feminist journalist (2) referring to an article about an issue of public interest, (3) in which the journalist used a language in which it was clear she was presenting opinions, rather than transmitting information, and (4) that the audience was society in general, which has a legitimate interest in the matter. Accordingly, the Tribunal held that Ruiz-Navarro legitimately exercised her right to freedom of opinion. This expression, the Court said, benefits from special protection too.
Moreover, the Court also considered that the principle of impartiality was fulfilled when Ruiz-Navarro and Londoño included in their article the transcription of the phone call made to Guerra. For the Tribunal this principle can be more flexible in cases of sexual violence accusations since it can not open the door for “revictimization, through the incessant repetition of the events […] and should not lead to a space of confrontation between the victims and the person they consider to be their aggressor” [para. 422]. The Tribunal also mentioned that it was Guerra who decided to answer with monosyllabic answers to the different questions posed by the journalists, thus “ending the possibility of providing a broader version or an alternative regarding the events” [para. 422].
On the issue of judicial harassment against Ruiz-Navarro and Londoño, the Court concluded that several of its elements were present. The Tribunal considered there was a power imbalance between the parties since the plaintiff is a public person who benefits from wide social recognition, at the national and international level, and vast economic resources to cover the expenses of the different judicial proceedings he lodged against the respondents.
The Court also noted that Guerra resorted to different judicial and extrajudicial scenarios to demand damages that a nascent media outlet would not be able to afford. Specifically, Guerra requested the retraction or removal of the article; during the criminal proceedings he requested damages of 150.000.000 pesos and in a civil action he requested USD$875.000. Furthermore, the Tribunal noted a pattern of abuse in Guerra’s request that the defendants abstain from ever naming the director in connection with criminal events. The Court considered this to be a form of prior restraint or censorship, prohibited by law.
Ultimately, the Constitutional Court considered that Guerra had initiated several proceedings making disproportionate monetary claims and demanding censorship.
In light of all of this, the Court considered that Ruiz-Navarro and Londoño did not breach Ciro Guerra’s rights to honor, good name, and presumption of innocence, overturning the second instance decision, and denying the action submitted by the plaintiff. The Court also ordered a copy of its decision be sent to Circuit Judge 47 of Bogotá and Local Prosecutor 292 —in charge of civil and criminal proceedings, respectively, lodged by Guerra against Ruiz-Navarro and Londoño— so they are aware of the guidelines that the Court set regarding judicial harassment and the abusive exercise of the right to access justice, and the need of solving cases regarding discrimination against women through the lens of a gender perspective.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this landmark decision, the Constitutional Court of Colombia provided ample protection to freedom of expression on various fronts. The Court underscored the special protections afforded to feminist journalism, reporting on gender-based violence, and escrache, as pressing societal issues of public interest. Moreover, the Court expanded the scope of freedom of expression by protecting investigative journalism, specifically regarding accusations of sexual violence and opinions on the issue, from censorship. Furthermore, the Court laid out relevant criteria to understand judicial harassment in the Colombian context against the press and expression on public interest matters. The Court further explained its negative impact on expression, and held that several elements of judicial harassment were present in this case.
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