Access to Public Information, Defamation / Reputation
Aécio Neves da Cunha v. Twitter Brasil
Closed Contracts Expression
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A citizen filed an action to enforce constitutional rights (acción de tutela) against the newspaper “El Tiempo” for publishing a story connecting him with criminal offenses for which he had been acquitted by the competent authority. He also brought the action against Google, because when his name was entered into the search engine a link to the newspaper story appeared. The Court decided to grant the action protecting the petitioner’s rights, but only ordered the newspaper to publish more accurate information on his situation. With regards to Google, the Court decided to acquit it of all responsibility, due to its role as an intermediary.
Two citizens owned a piece of real estate where the authorities forced an aircraft to land that was carrying what were allegedly psychoactive substances. After the incident, criminal investigations were opened against the owners of the land, but subsequently the statute of limitations for the offense expired. Some time later, one of the citizens found that when he entered his name into the Google search engine, a link appeared to an article in the newspaper “El Tiempo”, published during the investigations. This article stated he was affiliated with an organized crime cartel that had been named in connection with the facts under investigation. He therefore decided to bring an action to enforce constitutional rights (acción de tutela), demanding both the newspaper and the search engine eliminate his name from their records.
The newspaper argued, first of all, that a correction was not appropriate because the information published was neither false nor inaccurate. Second, it stated that after learning that the statute of limitations for criminal proceedings had expired, it had published information on the legal status of the proceedings, and thus “the information had been updated”. [par. 1.2.1]. Google, meanwhile, asserted that it was not responsible for the information found on its website because it was simply an intermediary between end users and other websites that were the providers of the information.
The trial judge decided to dismiss the action to enforce constitutional rights because the petitioner never proved that the information published by the newspaper was false. He also explained that “the declaration of expiration of the statute of limitations says nothing about whether the alleged criminal conduct was committed or not […] therefore, this declaration does not have the persuasive power to label as inaccurate the information in question in this action”. [par. 1.3.1.]
The petitioner appealed the decision, stating that the trial judge had not ruled on Google’s liability. He also explained that his intention was not to obtain a rectification, but rather the complete elimination of records linking him to the criminal investigation. The Appeals Court accepted the defendants’ arguments and upheld the judgment.
The Constitutional Court decided to reverse the judgment and partially grant the action protecting the petitioner’s rights, on the ground that the newspaper had not fully clarified the petitioner’s legal status. It therefore ordered the newspaper to carry out this clarification. With regards to Google, the Court decided to acquit it of all responsibility, due to its role as an intermediary.
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. 126.96.36.199.] 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.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts the scope of the right as it is applied in international law. To restrict the exercise of the right, a three-part test must be conducted and must show that the restriction of freedom of expression is legitimate; such test was not conducted fully in this case. Secondly, the content of the right was restricted. If the Court had indeed properly conducted the test and the result had been that the restriction was legitimate, the appropriate form of redress would have been to rectify the information which it considered inaccurate. The modification of the article’s content ordered by the Court could violate Principle 5 of the Declaration of Principles on Freedom of Expression of the Inter-American Commission of Human Rights, which prohibits interference or pressure exerted upon any kind of expression.
The decision contracts the scope of the right because, first of all, case law had established precedents imposing minimum restrictions on the right to freedom of expression, as this right enjoys special protection in the legal system. The judgment referred to this issue but did not apply it to the case in question. Second, the judgment imposed an excessively onerous remedy in order to redress the petitioner’s right to honor and reputation. The modification of the content of an article, which had been published much earlier based on true and verifiable information, is a precedent that could become dangerous and jeopardize the content of the right to freedom of expression.
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.
The Constitutional Court determines the constitutionality of the laws in Colombia and decides on matters regarding the Constitution.
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