Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
Closed Expands Expression
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The Constitutional Court of Colombia found that orders restraining the reporting of a dispute between a state official and her neighbors were over-broad for the purpose of protecting the rights of that official’s child. The issue surrounded a news broadcast which included identifiable images of the official’s son. The Constitutional Court of Colombia held that the rights of the child could be sufficiently protected by the removal of the images but that it was a violation of the right to freedom of expression to order the removal of the entire news broadcast, as well as those references to the official’s son that were already in the public domain.
These proceedings arose from publications about an ongoing dispute between Sandra Morelli, who was the then Comptroller General of the Republic of Colombia, and her neighbors. In 2012, Ms Morelli’s neighbors had complained about the excessive noise coming from her residence, including noise coming from the football pitch on the rooftop terrace of her home. During this ongoing dispute, one of Ms Morelli’s aggrieved neighbors filmed her son, who was a minor, playing soccer on the football pitch with three other children and his bodyguards. The video was then leaked and featured in a news program, Noticias Uno, during a broadcast about the dispute. The features of the children could not be made out clearly in the recording, but some physical characteristics were visible that allowed them to be identified by people in their social and family circle. [par. 42] The news program also broadcast a photograph of one of the bodyguards, and the licence plate of the vehicle used to transport Ms Morelli’s son.
Subsequently, a columnist for the newspaper El Espectador, Cecilia Orozco, published two opinion pieces criticizing Ms Morelli’s handling of the dispute with her neighbors. The pieces condemned her refusal to attend a settlement conference, and mentioned that her son was causing the disputed noise.
Ms Morelli brought a claim on behalf of her son against Noticias Uno, one of its reporters (Iván Serrano) and Cecilia Orozco. Ms Morelli argued that both the television report and the opinion columns infringed her son’s right to privacy and put him at risk because anyone could now recognize him. She requested that the judge order the defendants to delete the news from the news program’s website, issue an apology for the harm caused to her son’s rights, and refrain from “publishing, commenting, reporting or disseminating” images that violate the fundamental rights of the underage minors in the video. [par. 5]
The court of first instance ordered Noticias Uno to disable its link to the videos containing images of Ms Morelli’s son on its website. The court ordered Cecilia Orozco to eliminate from her opinion pieces the references to Ms Morelli’s son as being responsible for the noise that was subject to the neighbors’ complaints. The court also ordered the media outlets to “abstain from publishing, commenting, reporting or disseminating images that infringe the right to privacy of [Ms Morelli’s] child”, and apologize for harming his right to privacy. The news outlet appealed the decision. The tribunal of second instance affirmed the lower court’s ruling.
The Constitutional Court of Colombia noted that all forms of communication are, in principle, protected by the right to freedom of expression, however some forms of expression “are deserving of special constitutional protection due to their importance in promoting citizen participation, debate and control of public affairs”. [par. 16] The Court emphasized that political speech falls within this category, which not only covers expression of “electoral content but also any expression related to the governance of the body politic and, in particular, criticism directed towards the State and public officials” [par. 16]. The Court highlighted that “this type of speech is usually the one most at risk, even in the most vigorous democracies, because those that hold the most social, political or economic power may be the ones most affected by these forms of expression and, consequently, may be tempted to mobilize their power to censor these expressions and repress their authors” [par. 16].
The Court noted that the rights of others frequently collide with freedom of expression; predominantly the right to privacy, the right to an image, and the right to reputation. In relation to public officials, particularly senior government officials, the Court reasoned that there is a lower threshold of protection for these rights where they are in conflict with the right to freedom of expression. This is because such officials must be willing to submit their public life, as well as aspects of their private life, to scrutiny where they relate to the functions they perform, their failure to comply with their duties as citizens, their qualification and capacity to carry out their duties, and the evaluation of the trust deposited on them to manage public affairs.
The Court first considered the television report broadcast by Noticias Uno. The Court took into account that the images of the children were only used in 17 seconds of the report. The Court also observed that the report sought to inform the public about the Comptroller’s attitude toward the complaints made by her neighbors, and sought to demonstrate the veracity of the claim that Ms Morelli’s child was playing football on the roof of her residence. The Court recognised that the television program had been correct to obscure the features of the children, but found that this did not go far enough. The physiognomy of the children could still be ascertained, making them still identifiable to those in their family and social circle. The Court highlighted that although the children were playing football outside in view of their neighbors, this did not mean they were playing football in a public setting open to public scrutiny. Therefore, the broadcasting of the images from which the children could be identified without their parents’ permission was a violation of the children’s right to an image and their right to privacy. The requirement to remove these images was provided for by Article 47 of the Children and Teenager’s Code, and pursued the legitimate aim of protecting the rights of the children. Article 47 of the Children and Teenager’s Code prohibited the publication of interviews, the names or data that may lead to the identification of children who are victims, perpetrators or witnesses of a crime unless permission has been given by their parents or the Colombian Institute of Family Welfare.
The Court indicated that banning the dissemination of the entire news report was not provided for by Article 47 of the Children and Teenager’s Code, and was a disproportionate limitation on the right to freedom of expression. The Court highlighted that the ban related to the broadcasting of an entire news story of public relevance, namely a complaint made against a public official. Furthermore, the rights of the children were not engaged by those parts of the report that did not identify them and there was no “evidence that the publication caused any psychological or emotional harm [to the children] or that it had any effect on their life in society.” [par. 51] The Court concluded that it would have been sufficient to order that Noticias Uno remove the 17 seconds of footage from which the children could be identified, and replace those images with other visual aids that were non-infringing and could still satisfy the informational purposes of reporting on the complaint against Ms Morelli.
Turning to the opinion pieces, the Court noted that the reference to Ms Morelli’s child did not fall within Article 47 of the Children and Teenager’s Code. Moreover, the Court held that the relevant information about Ms Morelli’s child causing the noise had already been in the public domain. The Court concluded that the opinion pieces did not infringe the child’s right to privacy or any other fundamental rights. In reaching this conclusion, the Court emphasised that the criticism in the opinion articles was not directed at Ms Morelli’s underage son but towards “his mother for ignoring their neighbors’ complaints” [par. 58]. The Court held that the opinion pieces enjoyed special constitutional protection because they stimulated “public debate on the conduct of a high-ranking state official” [par. 58] and did not violate the limits of freedom of opinion. In consequence, the Court decided to reverse the order against Cecilia Orozco.
Finally, the Court emphasized that ordering a media outlet to refrain from publishing any type of information about a specific person violated the censorship prohibition established in Article 13 of the American Convention on Human Rights. Consequently, it revoked the order to “abstain from publishing, commenting, reporting or disseminating images that infringe the right to privacy of [Ms Morelli’s] child”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands the right to freedom of expression by limiting the orders granted by lower courts for the purpose of protecting children’s rights to privacy and protection of their image. The Court gave particular weight to the public interest nature of a story that sought to hold a public official to account, despite the fact that aspects of the story related to the public official’s child. The Court reasoned that it was disproportionate to remove an entire news story because it featured images from which children could be identified, favoring the removal or replacement of the specific images in question. Finally, the Court emphasized that prior restraint is not permitted under the American Convention on Human Rights, and therefore a media outlet cannot be ordered to refrain from publishing any sort information on a person.
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