Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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The Colombian Constitutional Court ruled that a judge’s right to privacy was violated and her reputation damaged when a journalist published an online article about the judge’s alleged workplace harassment and judicial misconduct. The journalist, Aldemar Solano Peña, had collected information from various employees who claimed they had been mistreated by Judge Gloria Patricia Mayorga Ariza. The article was published on Peña’s blog and Facebook account, and used a personal photo of Mayorga Ariza without her consent. A lawyer, Nasly Johana Huertas, commented on the Facebook post and questioned Mayorga Ariza’s ethics. The Court reasoned that the journalist violated the principles of truthfulness and impartiality, required by the right to information, by not verifying the information with other sources and by presenting the facts in a misleading manner. The Court then dismissed Mayorga Ariza’s other “action of tutela” against the lawyer Huertas for her comments, noting that it was simply her personal opinion and reaction to Peña’s article.
A journalist, Aldemar Solano Peña, wrote an article “Denounce Harassment and Bullying by the Judge of Sesquilé” and shared it both on his blog “Garabatos” as well as on his Facebook account. The posts also included a photo of the judge taken from her personal Facebook account.
The article highlighted the testimonies of various employees that describe workplace harassment perpetrated by the Colombian judge, Gloria Patricia Mayorga Ariza. Allegedly, Mayorga Ariza forced staff to run personal errands for her, mocked their clothes and bodies, intruded into their personal lives, insulted indigenous customs, and made threats. She was described as a racist and classist person. Further, one complaint in the article insinuated that the judge committed a serious violation of the judicial process when she tried to mislead another judge by making annotations in a letter addressed to the Ombudsman’s Office. Nasly Johana Huertas, a lawyer, commented on the Facebook post and questioned the transparency, ethics, and effectiveness of the judge’s work.
Subsequently, on November 21, 2016, Mayorga Ariza filed an “action of tutela” under Article 86 of the Colombian Constitution and Article 33 of Decree 2591 of 1991, which is equivalent to the writ for the protection of constitutional rights against journalist Peña and lawyer Huertas. According to Mayorga Ariza, both violated her constitutional rights to honor, good name, privacy, and good image. She requested the Municipal Criminal Court of Chocontá, Cundinamarca to prevent the free access of Peña’s article and that Peña and Huertas rectify what they wrote.
Mayorga Ariza claimed that Peña’s blog and Facebook post included biased content that was injurious, slanderous, and erroneous. Mayorga Ariza argued that most of the statements used in the article were from a former officer who filed an “action of tutela” against her and which was already resolved in her favor. Additionally, she pointed out that the journalist used her Facebook photo without consent. As for Huertas, Mayorga Ariza complained that the lawyer’s Facebook comment intended to damage her image and good name.
Peña insisted that he did not violate Mayorga Ariza’s right to privacy and reputation. He claimed that as a journalist, it was his duty to publish the complaints. Furthermore, Peña argued that the complaints deal with Mayorga Ariza’s relationship with her employees and information in the article was corroborated by at least five persons. The journalist added that before publishing the article he asked Mayorga Ariza to comment, but she did not respond before or after the article was published. Finally, Solano Peña argued that there was no violation regarding the Facebook photo because it was in the public domain and was of a public official.
Huertas argued that his Facebook comment was respectful, did not contain false statements, and did not threaten or slander the judge. Moreover, Huertas stated that the complaints cited in Peña’s articles are protected under the freedom of expression since they were respectful and did not contain threats.
On December 5, 2016, the first instance judge of the Municipal Criminal Court of Chocontá, Cundinamarca dismissed Mayorga Ariza’s “action of tutela”. The court reasoned that it did not meet the requirements of the action and that there was no violation of the right to honor. First, the court reasoned that Mayorga Ariza was not in a “state of defenselessness,” which in this case is when an individual has no other means to defend their rights before or after the time of publication. The court noted that Mayorga Ariza did not respond to Peña when he asked her for her version of the story, which was an opportunity for her to defend her rights before the publication. Moreover, after the publication of the article, Mayorga Ariza did not request Peña to rectify the inaccurate information, which is a requirement for the “action of tutela”. Finally, the court reasoned that the content of Peña’s article and Huertas’ comment also did not demonstrate vulgar or rude language that would affect the dignity of the judge.
Mayorga Ariza appealed the decision on the grounds that Peña’s and Huertas’ statements to the court had no factual or legal foundation. Moreover, she stated that that her lawyer did ask Peña to rectify the errors in the article by commenting on Peña’s Facebook post. Consequently, the decision was overturned by the Criminal Court of the Chocontá Circuit, Cundinamarca on January 25, 2017. The court explained that although Solano Peña’s article reflected his personal opinions, he failed to comply with journalistic obligations of truthfulness and impartiality. The second instance court also noted that the vastness and uncontrollable nature of the Internet created a state of defenselessness for Mayorga Ariza in which she was unable to protect her rights and therefore, Mayorga Ariza’s constitutional rights were violated. The court ordered Peña to correct his article and re-post it on his blog and Facebook account. However, the court dismissed the “action of tutela” against Huertas by reasoning that the comments were within the purview of the right to freedom of expression.
The Colombian Constitutional Court was required to analyze two central issues. First, the Court had to determine whether Peña’s article on his blog and Facebook account, which included a photo of Mayorga Ariza, disregarded the journalistic duties of truthfulness and impartiality. The Colombia Constitution demands anyone whose mission is to inform, to abide by these duties. This was particularly important for Peña because his article included complaints against Mayorga Ariza that could lead to disciplinary action against her. Second, the Court had to determine whether the comments made by Huertas undermined the constitutional rights of Mayorga Ariza.
In making its decision, the Court analyzed the constitutional jurisprudence on the “action of tutela”, the rights to privacy, reputation, and personal image, as well as the fundamental rights to freedom of expression and information.
The judgment began by explaining that an individual may bring an “action of tutela” when s/he provides a public service and is in a “state of defenselessness”. The latter requirement refers to a situation in which the individual cannot immediately and effectively rectify the issue at hand or when the individual cannot protect his/her rights because of a power imbalance. In this case, the Court would grant “action of tutela” if Mayorga Ariza demonstrated that she was unable to protect her rights before or after the publication. The Court noted that before the publishing of the article, Mayorga Ariza did not respond to Peña’s request for an interview because she believed that a reputable judge should not respond to the calls of a private individual or journalist on personal or work-related matters. Additionally, the Court noted that after the article was published, Mayorga Ariza said that her lawyer commented on Peña’s Facebook post and requested him to rectify the information. However, the Court stated that Mayorga Ariza did not need to request Peña to rectify the information. Ultimately, the Court reasoned that because the article about Mayorga Ariza was published on Facebook and on an online blog, it had great reach and impact, which placed Mayorga Ariza in the state of defenselessness after it was published.
Moving forward, the Court outlined the law and jurisprudence regarding the right to privacy. Article 15 of the Colombian Constitution recognizes the right to personal and family privacy. This right serves as a guarantee that the State or other parties will not disclose personal information without authorization. The Court also considered the right to reputation, which is how others view a person and respect human dignity. This can be infringed “…as a result of offensive or insulting expressions or false or biased information.” [pg. 34]
The Court further argued that the personal image of a person cannot be used or manipulated without the owner’s consent because the image is a direct expression of an individual’s identity. The Court previously held that the use of an image on social media posed a greater risk to the protection of an individual’s fundamental rights because of the speed and scope with which the image could be disseminated, which imposed significant risk on a person’s right to privacy.
Next, the Court discussed the right to freedom of expression enshrined in Article 20 of the Constitution. This right is a constitutional guarantee that allows the free dissemination of opinions and ideas, yet it also protects the right to inform and receive information that is true and impartial. [p. 37] Hence, freedom of expression is comprised of two aspects: the freedom of expression and the freedom of information. The freedom of expression can be best understood as the free transmission of all thoughts, opinions, and ideas. In contrast, the freedom of information relates specifically to access to truthful information on daily events, occasions, facts, governments, and public officials. The Court emphasized that information about public officials must be truthful, impartial, and “respectful of the fundamental rights of third parties, particularly reputation and honor.” [p.39]
The Court highlighted different international and regional instruments which have recognized this dual dimension of freedom of expression, including Article 19 of the International Covenant on Civil and Political Rights, Article 13 of the American Convention on Human Rights, and Article 10 of the European Convention on Human Rights.
In Pena’s case, the Court analyzed the content of his article using the principle of freedom of information and not freedom of expression because Peña was a journalist, who has a “social responsibility” to promoting truthfulness and impartiality, using information and not opinions, and rectifying information. In the Court’s view, the journalist did not verify the information with other sources, which would have allowed him to meet the principle of truthfulness. Similarly, he presented the information in a distorted fashion with biases, which ultimately led to a violation of the principle of impartiality. Therefore, the Court held that Mayorga Ariza’s right to reputation was violated since Peña failed to comply with these journalistic duties.
Furthermore, the Court acknowledged that content related to public officials and of public interest has special constitutional protection so that citizens can access information on public decisions that may affect them. However, this does not mean that it is lawful to issue false or erroneous information related to a person who is involved in public interest issues.
Consequently, the Court upheld the decision by the second instance judge, by affirming that Peña’s article violated Mayorga Ariza’s fundamental rights to privacy, reputation, and personal image. The Court ordered Peña to rectify the article within 10 days, re-post it on Facebook, and take down the photo of Mayorga Ariza. However, the Court dismissed Mayorga Ariza’s “action of tutela” against the lawyer Huertas since she was exercising her right to freedom of expression and presenting her personal point of view. Moreover, her comments, which were not insulting or slanderous, were a reaction to Peña’s article, making them simply an opinion in a personal capacity.
Judge José Fernando Reyes Cuartas dissented. For Cuartas, the publication of images or videos on social media networks implied that the users were, to some extent, voluntarily renouncing their right to a private life. He conceded that images published on social media should not be used in any manner desired. Nonetheless, in the case of Judge Mayorga Ariza, the ruling should have considered this dynamic when assessing the violation of the rights to privacy and reputation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts the right to freedom of expression given that it disregards the notion that public officials voluntarily accept a higher threshold of tolerance for criticism and public scrutiny. Consequently, the Court’s ruling contradicts its previous decisions that acknowledge that public officials’ rights have to yield to critical observations or examinations from society and journalists.
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