Case Summary and Outcome

The Constitutional Court found that a journalist’s online video commenting on and criticizing an influencer’s opinion on the LGBTI community did not violate the latter’s fundamental rights to good name and honor. The Court established a test to distinguish between factual information and opinions by considering six  contextual elements. Further, some topics due to their public interest value, such as gender equality or discrimination against the LGBTI community, should be considered as specially protected speech in light of Colombian and Inter-American standards of freedom of expression. Hence, the Court held that the video was protected by the right to freedom of expression because it represented a critical opinion based on publicly available, true and verifiable facts related to an important social issue.

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Facts

Christian Influencer Erika Nieto Marquez published a video on her YouTube channel called “Mi video más sincero” (my most honest video), where she talked about her opinion of the LGBTI community, in her religious perspective. As a response, journalist Maria Angela Urbina published a video called “Kika Nieto odia a gays y lesbianas así diga lo contrario” (Kika Nieto hates gays and lesbians even if she says otherwise) in “Las Igualadas”, an opinion channel that belongs to El Espectador newspaper. There, she commented on and criticized Nieto’s video. 

In response, Nieto requested that El Espectador newspaper rectify the information disseminated on “Las Igualadas”, by the journalist Urbina. According to Nieto, the journalist Urbina made verbal attacks, defamatory accusations against her, and maliciously decided to accuse her of being a violent and perverse person, capable of hitting and killing another person because of her sexual orientation. In addition, Nieto alleged that Urbina said that she sought to incite her followers to commit atrocious acts against people from the LGBTI community. Lastly, she asked the director of the newspaper to make a public rectification. 

The director of El Espectador newspaper rejected Nieto’s request considering, first, that it is only feasible to rectify false or erroneous facts but not thoughts or opinions. Second, “Las Igualadas” is an opinion channel created to discuss gender and discrimination issues. Consequently, the opinion given on that platform is inviolable as per Article 20 of the Constitution.

Following this, Nieto filed a Tutela (an application for the protection of constitutional rights) alleging the violation of her fundamental rights to good name and honor.

The first instance Court ruled against the plaintiff considering that the defendant’s video did not include expressions that were intended to offend her or misrepresent her comments, but rather to criticize the statements she had made about the LGBTI community. The Court established that it is different to transmit information rather than opinion, since the former must be subject to a prior review for veracity and impartiality, in order to avoid it being false or erroneous. In other words, false or erroneous information must be clarified or rectified. Opinion is subjective. 

The decision was not contested by the plaintiff.  

The Decree 2591/91, which regulates tutela, establishes that once the regular proceeding is concluded every tutela file should be send to the Constitutional Court, which may decide to select it for a special review or not. This case was chosen by the Constitutional Court for its review.

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Decision Overview

Judge Luis Guillermo Guerrero delivered the judgment of the Court.

The main issue before the Court was to determine whether the journalist Urbina and El Espectador newspaper violated the fundamental rights to good name and honor of the plaintiff by publishing the video called “Kika Nieto odia a gays y lesbianas así diga lo contrario” (Kika Nieto hates gays and lesbians even if she says otherwise).

The plaintiff argued that the journalist Urbina made defamatory accusations against her. The director of El Espectador newspaper responded that “Las Igualadas” is an opinion channel protected by Article 20 of the Constitution and that the content of the channel is not within the scope of the right to information. 

The Court mentioned that Article 20 of the Constitution incorporates the guarantee of protection of freedom of expression in strict sense, and freedom of opinion and information, the right to rectification under conditions of equity and the prohibition of censorship, among others. 

For the Court, the right to freedom of expression includes not only the right to express oneself without any arbitrary interference, but also the right to use any appropriate means to disseminate expressions. The expression is inseparable from the means of dissemination used to make it effective. Restrictions on the possibilities of dissemination constitute, likewise, a limitation to freedom of expression. This right also includes the freedom to choose the tone or the esthetic of the speech.  

The Court referred to the differences between freedom of information and freedom of opinion. For the Court, freedom of information bears a greater burden for those who exercise it because, as it concerns the expression of facts, it must be based on verifiable data and has the requirement of truthfulness and impartiality. Freedom of opinion, since its scope of protection includes ideas, ways of seeing the world and personal appreciations, does not demand those requirements.

The Court established a test to distinguish between information and opinions by considering six  contextual elements: “(i) the message; (ii) the purpose; (iii) the characteristics of the way in which it is disseminated; (iv) the way it is used and presented to an audience; (v) the graphic presentation of the section; and (vi) the length” [para. 4.2].

There are cases where it is difficult to differentiate information from opinion, especially when the latter is not pure and simple, but instead is combined with facts. For the Court, judges must study the context and function of the communicated content.

In this particular case, the Court said therefore, even when the opinion of “Las Igualadas” includes information, that is, facts referred to in the video, this does not imply that the nature of the opinion channel mutates, and it remains within the scope of freedom of expression. 

The Court referred to types of speech specially protected by freedom of expression and the prohibitions or limitations to this right. 

For the Court, some topics such as gender equality or discrimination of the LGBTI community should be considered as a specially protected speech in light of Colombian and Inter-American standards of freedom of expression, since it is a matter of public interest. When an individual exercises freedom of expression in the public interest, the possibility of imposing limits must be analyzed more rigorously. The assessment of opinions as acts of control of public power within constitutional democracies should have a wide and thoughtful margin. For the Court, “(i) any limitation to freedom of expression must be expressly justified, (ii) limitations to freedom of expression are under suspicion of unconstitutionally and are subject to strict constitutionality control, especially those that have to do with expressions on matters of public interest, and (iii) the Constitution establishes a general prohibition of censorship” [para. 4.3].

Related to the prohibitions or limitations of the right to freedom of expression, the Court said “although the general rule is that every expression is protected by the right of freedom of expression, there are certain [types of] speech that are not only not protected, but are also subject to a manifest prohibition in national and international legislation, such as child pornography, incitement to genocide, war propaganda, incitement to violence and to terrorism” [para. 4.4]. 

The Court quoted the IACmHR, who has indicated that “the imposition of sanctions for the abuse of freedom of expression under the charge of incitement to violence (understood as the incitement to commit crimes, the breaking of public order or national security) must be backed up by actual, truthful, objective and strong proof that the person was not simply issuing an opinion (even if that opinion was hard, unfair or disturbing), but that the person had the clear intention of committing a crime and the actual, real and effective possibility of achieving this objective. Acting otherwise would mean admitting the possibility of punishing opinions, and all the States would be authorized to suppress any kind of thought or expression critical of the authorities that, like anarchism and opinions radically opposed to the established order, question the existence of current institutions”..

The Court concluded by saying that, when tensions arise between freedom of thought, opinion and information and the rights to honor and good name, Courts must identify which freedom is being exercised.  In the case of information, a greater burden of truthfulness, impartiality and public importance is required, while in the case of thoughts or opinions, the Courts must assess whether they are expressions devoid of any factual rudiments, vexations or deceit.

The Court found that the speech expressed by “Las Igualadas” in the video was a critical opinion based on public interest, truth and verifiable facts. For that reason, the video was protected by the right to freedom of expression. In conclusion, the Court confirmed the decision of the first instance.

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