Defamation / Reputation
Johnson v. Steele
Closed Expands Expression
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The Constitutional Court delivered its decision rejecting two Tutela (constitutional injunction) and held no violation of freedom of expression in the case of social media comments. The case concerns complaints filed by two separate individuals against the Mayor of Bucaramanga for his comments made against them in separate airings of a Facebook Live show, afterward available on other social media outlets. The first Plaintiff contended that the comments criticizing her role as leader of a union of public servants violated her fundamental rights to honor and a good name, thus seeking the deletion of the recording from social media as well as a rectification by the Mayor about his comment. The second Plaintiff contended that the Mayor’s comments which accused her of fraud for promoting a new irregular settlement within Bucaramanga violated her rights to honor and good name, and thus she sought a retraction by the Mayor. The Court in the first Plaintiff case observed that the Mayor is a high-ranking officer with a higher duty of care in the exercise of freedom of expression, and the Plaintiff is an individual with notoriety and public relevance for being a public servant and a union leader. The Court held that the Mayor’s comments did not suffice the level of searchability and findability necessary to amount to a violation of the Plaintiff’s rights. The Court in the second Plaintiff case reiterated that Mayor is a high-ranking public officer with a higher degree of care in the exercise of his freedom of expression, and further observed that the Plaintiff is a private individual with no public notoriety. The Court held that in the second case also, the Mayor’s comments did not reach thresholds of searchability and findability and cannot be considered as constituting harassment.
Between August and November 2018, then the Mayor of Bucaramanga Rodolfo Hernández (the Defendant) did many Facebook Live show with the title “Talking with the Mayor.” In this Live show, the Mayor made several comments against people including the two Tutela petitioners of the present case.
Case of First Plaintiff
On August 27, 2018, Mayor Hernández in his Live show referred to María Cecilia Díaz Suárez (the Plaintiff), Chair of the Bucaramanga branch of the union of public servants, and commented that several disciplinary and criminal complaints filed by her against him were politically motivated.
The aggrieved Plaintiff filed a Tutela (an application for the protection of constitutional rights) against Mayor Hernández contending that he accused her of corruption and of participating in conspiracies, violating her fundamental right to honor and good name. Plaintiff prayed before the Court for the deletion of the video available on social media and an order directing Mayor Hernández to rectify his sayings.
Mayor Hernández responded to the Tutela contending that his comments on the Live show were limited to referring to politically biased conduct that affect the local administration and reference to the existence of criminal complaints against him, many of them filed by Plaintiff. The Mayor further contended that he had filed a criminal defamation complaint against the Plaintiff for stating that he had threatened her. In his conclusion, the Mayor requested the dismissal of Tutela, considering that he had to first send a request to rectify as a procedural requirement that applies to cases filed against media outlets.
The Fourth Municipal Criminal Court (Court of First Instance) rejected the Tutela on the reasoning that the Plaintiff had other means to defend her rights, as the tutela works as a subsidiary procedure. The Court considered Defendant’s argument that Plaintiff did not request Defendant to retract the allegedly transgressive expressions of his good name and honor. The aggrieved Plaintiff filed an appeal, contending that the Court omitted the fact that the expressions were against a subordinate of Defendant, that it placed her in a position of the defenseless situation before Mayor Hernández, and that the video had been seen 214.000 times, and had 1400 shares.
On October 24, 2018, the Fifth Criminal Court of the Bucaramanga Circuit (Court of Second Instance) reaffirmed the decision of the Court of First Instance. The Court said that the rectification request only operates before the media, so Plaintiff was empowered to go directly to the tutela (amparo) action. The Court considered that the former mayor did not incur the alleged fundamental violation of law, since the “opinions” that he issued were supported by verifiable facts. Lastly, the Court clarified the expression “politicking” and observed that given its semantic vagueness, it had to be analyzed within the framework of a criminal proceeding for the crimes of libel and slander.
Case of Second Plaintiff
On November 6, 2018, Mayor Hernández in his Live show referred to Carmen Cecilia Delgado (second Plaintiff), his son Octavio Delgado and a third individual. Mayor Hernández made accusations of slanderous, insultingly, and false and further commented that they were committing fraud by selling portions of land in an illegal settlement.
The Plaintiff filed a Tutela contending that the comments made by Mayor Hernández were defamatory against her and that she and her son were pursuing legal procedures to take the property off the area where the settlement was taking place. She also contended that Mayor Hernández had no basis for his affirmations and had acted as prosecutor and judge before the public. In conclusion, the second Plaintiff contended that Mayor Hernández violated her rights to good name and honor and therefore requested the Court to direct an order against Mayor Hernández to retract his words.
Mayor Hernández responded to Tutela contending that what he did in his Live show was to warn the public about what he considered a fraud, that he had no knowledge of the legal proceedings for acquiring property alleged by the Plaintiff. Further, Mayor Hernández contended that as a local authority, he had a duty to protect the rights of the community, which included informing about the issues of irregular alienations.
The Eleventh Municipal Civil Court of Bucaramanga (Court of First Instance) declared the Tutela inadmissible on the reasoning that Plaintiff did not demonstrate that Mayor Hernández was requested to rectify the statements allegedly infringing on his rights. The second Petitioner didn’t appeal the decision of the Court of First Instance.
Under Colombia legal regime, the tutela is a constitutional injunction that aims to protect fundamental constitutional rights when they are violated or threatened by the action or omission of any public authority. This mechanism is incorporated in Article 86 of the Constitution. Furthermore, Decree 2591/91, which regulates tutela, establishes that once the regular proceeding is concluded every tutela file should be sent to the Constitutional Court, which may decide to select it for a special review or not. The instant case was chosen by the Constitutional Court for its review.
Judge José Fernando Reyes Cuartas of the Constitutional Court delivered the judgment. The primary issue before the Court was to determine first, whether the tutela was an adequate proceeding for protecting the rights of the plaintiffs in the specific cases. Second if so, then whether a public servant can violate good name and honor by making defamatory statements on his social media accounts exceeds his duty to communicate with citizens.
The Court referred to (SU-420 of 2019) and stated that in a case concerning the violation of the rights to a good name and honor due to the dissemination of dishonorable or defamatory content on digital social networks, the principle of subsidiarity of the tutela/amparo actions between natural persons must be subject to verification. [para. 6] The verification threshold includes examination of (i) the prior withdrawal or amendment request addressed to the person who made the publication; (ii) the claim before the platform in which it is hosted, as long as the “community rules” allow the exclusion of the content; and (iii) the constitutional relevance of the matter, a requirement aimed at evaluating the context in which the alleged violation takes place. [paras. 9-12]
Further, the Court went ahead and examined the freedom of expression of public servants and its constitutional limits, emphasizing the power duty of communication of senior State officials. The Court highlighted the difference between freedom of expression, and freedom of information. The Court noted that like everyone else, public officials are holders of the right to freedom of expression in any of its manifestations, however, due to the role they play in society, they are subject to special burdens in the exercise of this prerogative. [para. 17]
The Court noted that public officials’ duty is further heightened when the statements are done with regard to individuals afforded special protection, such as human rights defenders, members of peace communities, and victims of violence of the armed conflict, among others. [para. 18] It further stated that public officials’ statements ought to be even more prudent and respectful of rights such as good name, honor, and privacy, and, any possible excesses that they may commit ought to be subject to stricter control. [para 21]
The Court on the freedom of information noted that high-ranking public officials have a duty to inform about issues under their remit, state positions of the authority they are in charge of, disseminate the official policies, analyze, comment, defend and express their opinions about the governmental program there are implementing, respond to critics and nurture the public’s participation. [para. 25] The Court indicated that the possibility of addressing the public is not free, as it involves a correlative duty of respect for objectivity i.e. when public servants express their opinion, they have to comply with standards of truthfulness and impartiality when referring to information or, when expressing opinions, to have a reasonable and real factual basis. [para. 27]
Further, the Court observed that the Constitutional relevance of the case ought to be assessed through another criterion which includes the examination,
When applying this test to the both of the case, the Court reached the following conclusions;
In both cases, the Court held that the present protection action does not exceed the principle of subsidiarity, because once the context of the infringing facts has been reviewed, it is not possible to determine the concurrence of all the parameters that grant the constitutional relevance of its fundamental nature necessary to address the substantive analysis. [paras. 56, 77] However, the Court observed that notwithstanding both the cases do not proceed to the substantive analysis of the alleged violation, it does not prevent it from emphasizing that the Defendant should act prudently and carefully so as not to undermine the rights of others to use digital social networks. [paras. 57, 78]
The Court noted that none of the Plaintiffs had to make a direct request for rectification as the Defendant was not a journalist and the statements were not made by a news outlet. Furthermore, the Court considered that it was not possible to apply the specific requirements existent in social media cases, as the precedent that set those rules was brought by a judgment of the Constitutional Court that occurred after the time in which the facts took place. The Court concluded that taking into consideration of lack of constitutional relevance in both cases, it is necessary to indicate that the criminal and civil actions available in the legal system constitute the suitable and effective means of defense to resolve the controversy. [paras. 58, 79]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression. The case reiterates rules referring to freedom of expression of high-ranking public officers, which is in line with international human rights case law, particularly of the Inter American Court of Human Rights in the cases of Ríos et al v. Venezuela and Perozo et al v. Venezuela. Furthermore, the Court places a degree of flexibility to the application of that duty of care in cases of publications in social media. As such, the judgment brings protection to statements that, although they might be against that duty of care in principle, are not likely to have an impact in plaintiff’s rights. Furthermore, the judgment applies an assessment that allows for the protection of statements that, isolated, might arise to an abuse in the exercise by freedom of expression but, seen within a wider contextual framework, would not have risk of infringing the rights of others.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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