Case Summary and Outcome

Facts

Decision Overview

Judge Jorge Ignacio Pretelt  Chaljub delivered the opinion of the Constitutional Court.

The Court had to determine whether the newspaper had an obligation to rectify information about a criminal proceeding that, in the opinion of the offended party, could mislead readers; and whether it was appropriate to delist the link to this information at the request of the person concerned.

The Court began by highlighting the role of the right to freedom of expression in a democracy. It stated that this right has primacy in the legal system, which is expressed through a number of presumptions established for its protection. In the opinion of the Court, these presumptions are as follows: “[i] the presumption that any speech is covered by the scope of constitutional protection; [ii] the suspicion that any restriction on freedom of expression may be unconstitutional; [iii] the presumption of the primacy of freedom of expression over other constitutional rights, values, or interests with which it may come into conflict; and [iv] the presumption that control over the content of speech constitutes censorship”. [par. 2.3.3.] It explained that freedom of expression protects freedom of information, which in turn implies a number of duties for the proper exercise of this freedom. According to Colombian case law, these duties are primarily veracity, impartiality, and respect for the rights of third parties, especially the rights to honor and reputation. [para. 2.3.5]. On this point, the Court recalled that the requirement of “veracity” must be understood, firstly, as the need to distinguish between information and opinions, and secondly, as the fact that the information does not mislead those receiving it. The Court stated that when a media outlet refers to the commission of crimes, it must take special care to respect the principles of impartiality and accuracy, and that this did not take place in the case at hand.

In the opinion of the Court, a reading of the article, and particularly its headline, leads to the interpretation that all of the individuals mentioned in the article, including the petitioner, are part of the illegal organization referred to therein. Moreover, the manner in which the plaintiff is mentioned in the article does not clearly present his actual legal status. Consequently, the Court decided to reverse the second instance judgment and grant the action to protect the petitioner’s rights to honor and reputation. It therefore ordered the newspaper to explicitly clarify the petitioner’s legal status and correct any information that might mislead readers in this respect.

With regard to Google’s liability, the Court argued that the company could not be held liable for what is on its website because “Google provides a service for searching for information that is on the entire Internet. The company does not write or publish such information, but is simply a search engine; it may not be held liable for the veracity or impartiality of any article, story, or column appearing in its search results.” [par. 2.3.2.2.] Consequently, the Court refrained from issuing any order to the search engine.

Judge Alexei Julio Estrada agreed with the decision made by the Court, but stated that the remedy provided by the Court – i.e., the modification of the article’s headline and contents – could be too onerous and should only be granted in exceptional cases.