Case Summary and Outcome

The Constitutional Court of Colombia ruled that an individual’s freedom of expression was unlawfully restricted when she was forced to take down an allegedly defamatory Facebook post and to apologize. Jael Johana Castro León re-shared a Facebook post that accused Sigifredo Fonseca González of belonging to a corrupt cartel at the Santander University Hospital. Fonseca Gonzalez sued Castro León, arguing that she violated his fundamental rights to good name, honor, and privacy. After introducing and applying a five-part test to balance the competing rights to freedom of expression and privacy, the Constitutional Court reasoned that Castro León did not violate the rights of Fonseca González because she expressed an opinion that was of public interest and did not accuse Fonseca González of any specific wrongdoing.

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Facts

Mr. Sigifredo Fonseca González has served as the Assistant Manager of Diagnostic Support Services of the Santander University Hospital in Bucaramanga, Colombia since August 2010. Ms. Jael Johana Castro León is a worker at the Santander University Hospital.

On February 5, 2018, Castro León re-published a post on her Facebook page that included a photo of Fonseca González and other directors of the Santander University Hospital. The post denounced the directors by claiming that they were part of a corruption cartel and demanded their resignation. In addition, the post labeled the directors as a national shame and requested viewers to share the post to ten contacts to raise awareness on corruption, workplace harassment, and waste of public resources.

 Consequently, on February 8, 2018, Fonseca González filed an “action of tutela” against CastroLeón for violating his fundamental rights to good name, honor, and privacy. Fonseca González noted that in his entire 34 years of public service, he has never been held responsible for crimes, disciplinary actions, or tax misconduct. He argued that since Castro León shared the post claiming that he was involved in a corruption cartel, he had to justify his conduct to various people, ultimately violating his fundamental rights. Fonseca González requested the Seventeenth Municipal Civil Court of Bucaramanga to order Castro León to delete her shared post and write an apology on Facebook.

On the other hand, Castro León argued that she could not be held responsible since she did not write the post, but simply re-published it. Moreover, on February 9, 2018, Castro León removed the post from her Facebook profile since she realized that it was not the most effective way to combat corruption. She stated that at the time, she felt compelled to share the post because she felt helpless and was outraged at how the miscalculated decisions of the hospital’s officials had negatively affected her colleagues. Castro León thought that the post embodied her dissatisfaction with the institution and shared it to call attention to the hospital’s inability to rectify its mistakes. In addition, she noted that the original post had been circulated long before she shared it.

On February 20, 2018, the court of first instance, the Seventeenth Municipal Civil Court of Bucaramanga, ruled that the content of the post accused Fonseca González of actions that could be punishable and since he provided evidence that these accusations were not true and the post did not provide any sources, the post was irresponsible. The court noted that although Castro León did not originally write the post, she did share it, making her partially responsible for the violation of the fundamental rights of Fonseca González.  Accordingly, the court ordered Castro León to post an apology on Facebook and to retract the accusations made in the original post. The apology had to remain on her page for a minimum of five days and be visible to the same group as the initial post.

Castro León appealed the judgment on the grounds that Fonseca González did not prove that her shared post caused him harm. Furthermore, she claimed that he posted flyers of the decision of the court of first instance around the hospital to mock her in front of their colleagues.

On April 3, 2018, the court of second instance, the Seventh Civil Court of the Circuit of Bucaramanga, upheld the decision of the court of first instance. The court reasoned that the Facebook post smeared the good name of Fonseca González and violated his honor and dignity.

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Decision Overview

The Constitutional Court had to first examine the merits of the “action of tutela” filed by Fonseca González. Second, since this is a case where the rights to good name, honor, and privacy conflict with the freedom of expression, the Constitutional Court had to weigh these rights by analyzing the content of the Facebook post.

First, the Constitutional Court found that the “action of tutela” filed by Fonseca González met the immediacy and “state of defenseless” requirements. An “action of tutela” must be filed within a “reasonable and timely period” from when an action that violated an individual’s fundamental rights occurred. In this case, Fonseca González filed the case on February 8, 2018, only three days after Castro León shared the post, signifying that he did meet the immediacy requirement. In regard to the “state of defenseless”, the Court explained that this is a situation in which a person has exhausted all options and could not defend their rights, rendering them defenseless against violations.  Here, Fonseca González was unable to defend his rights due to the ability of social media to disseminate information at a rapid and uncontrollable speed. Since Fonseca González lacked the physical and legal means to counter the Facebook post’s allegations against him, the Court ruled that he was in a “state of defenseless”. Hence, the “action of tutela” filed by Fonseca González met both requirements.

Next, the Court outlined relevant constitutional provisions and norms concerning to the rights to privacy, good name, honor, and freedom of expression. Article 15 of the Constitution states that individuals have the right to personal and family privacy and to reputation. The State or other parties cannot arbitrarily intervene with the right to privacy.

Moreover, the right to privacy is grounded in five principles. First is the principle of freedom, which means that the disclosure of an individual’s personal data requires their consent or a legal obligation to release the information. Second, the principle of purpose, which requires the disclosure of personal data to have a constitutionally legitimate purpose. Third, the principle of necessity notes that disclosed personal information must be connected to the intended purpose of the disclosure. Fourth, the principle of veracity requires the disclosed information to be truthful. Finally, the last principle is the principle of integrity, which requires information to be disclosed in its entirety. Ultimately, the Court explained the right to privacy can only be breached with the consent of a concerned party or a legal order.

Article 15 of the Constitution also outlines the right to good name and holds it synonymous with the right to a good reputation. This right is violated when individuals or public figures disseminate false or inaccurate information with an intent to damage a person’s reputation. False information, in other words, distorts the image and reputation of an individual. The Court also outlined the right to honor, which is enshrined in Article 21 of the Constitution, and that protects an individual’s dignity in front of society.

The Court proceeded to clarify the legal standards on freedom of expression and information as it relates to social media. First, the Court noted that Article 20 of the Constitution states that every individual has the right to freely express and disseminate their thoughts, opinions, and ideas without limitations or censorship. The right to freedom of expression enjoys protection in a democracy because it allows individuals to seek truth and build their knowledge, promotes personal autonomy, and prevents the abuse of power. The Court also cited Article 13 of the American Convention on Human Rights to emphasize that freedom of expression is a central pillar in democracies and a pre-condition for democratization. However, the Court noted that freedom of expression enjoys great protection, but it is not an absolute right and can be limited when it conflicts with the right of others.

Second, the Court distinguished between freedom of expression and freedom of information. The key difference is that freedom of expression encompasses all forms of opinions while freedom of information refers only to information on a particular event, which must abide by the principles of truthfulness and impartiality. It is often difficult to discern which “freedom” applies since opinions may carry information and information may carry opinion. Hence, a court must analyze the factual content of the information and allow individuals to distinguish what is opinion and what is information.

Third, the Court pointed out that speech on public interest and public figures is protected under freedom of expression, regardless of the content. In other words, opinion and debate on political discourse and public officials including criticism is constitutionally protected because it represents an integral part of democratic societies. The Court further cited the 2004 case of Herrera-Ulloa v. Costa Rica in which the Inter-American Court of Human Rights emphasized the importance of not restricting this type of speech particularly when it concerns public figures because they perform public functions and voluntarily accept the risk of being scrutinized. Nonetheless, the Court clarified that judges need to examine information to first determine whether it is of public interest and value. Additionally, not all information on public officials is relevant to the public interest. Only information on the functions performed by a public figure, any violations of legal duties as a citizen, and aspects of the private life that jeopardize the trust placed in public officials is of public interest.

However, the Court stated that although it cannot require individuals to be absolutely certain of the veracity of the information on public officials, it does expect media networks including social media users to make a diligent effort in investigating the information before disseminating it.

Next, the Court analyzed the principles of freedom of expression in the context of the internet. The Court acknowledged that digital spaces have democratized public debate by allowing individuals to exercise their freedom of expression. Yet, the internet and social media networks have raised new questions on the implications of freedom of expression. The Court determined that the protection of freedom of expression as well as it limits apply to the internet similar to other forms of media. Yet, the internet has a unique ability to disseminate information at uncontrollable speed and store information for extended periods of time. Hence, courts must pay greater attention to how online expression impacts the rights of others and constantly develop new parameters to interpret these conflicts. Therefore, when a conflict between rights emerges over posts on the internet, a court must adopt the judicial decision that mitigates harm and ceases the violation of rights, yet also prioritizes freedom of expression when possible.

 

Guidelines on Navigating the Conflict Between Rights

The Court established detailed guidelines on how to balance the rights to privacy, good name, and honor with the principles of freedom of expression and information when they seem to conflict. There are five considerations a court must make on the content of the information: (i) the speaker, (ii) the content, (iii) the audience, (iv) the form, and (v) the communication medium

(i) The Speaker: the first consideration is to determine the speaker and whether s/he is the author of that communication. The identity of the person and role of the person in society matters. Is the person who is communicating a private individual, public official, journalist, minority, or a lawyer? Depending on the identity of the individual, the Court outlined methods on how to interpret freedom of expression. For example, a common citizen is able to exercise their right to freedom of expression without extensive limitations. However, the Court cited its prior judgment T-949 of 2011 to note that a public official’s freedom of expression can be restricted due to their societal responsibilities. In addition, the Court reasoned that courts have a special duty to protect journalists as well as their right to freedom of expression since they may be at risk of physical violence or harassment for informing society.

(ii) The Content: what or whom is the information about. The Court noted that the information may be detailed or ambiguous. First, a judge is required to assess whether the information includes propaganda, discriminates based on national, racial, or religious lines, incites violence toward a person or group, promotes hate speech, includes child pornography or calls for genocide. Moreover, the judge will need to assess the accuracy of the facts included in the content and whether there was an intent to portray inaccuracies. Finally, the judge will need to consider the identity of the speaker to determine whether the information constitutes a particularly protected speech including on matters of public interest, public officials, or other discourses as outlined by the Court.

(iii) The Audience: A judge must determine who the recipient of the information is in terms of the characteristics of the individual(s) and their number. First, it is necessary to consider the identities of the recipients of information, such as if they are minors. Second, it is important to note the number of recipients the information has reached or can reach. A larger audience signifies a larger impact on the exercise of fundamental rights of an individual who is affected by the speech.

(iv) The Form: A judge must determine if the information is written, spoken, or expressed in nonverbal manners such as visual representations. The Court reasoned that freedom of expression covers both oral and written communication. Moreover, the Court highlighted that a judge must assess how easily the information can spread in terms of communicability. Communicability signifies that a short message with eye-catching visuals is more likely to reach larger audiences rather than a long message or a low-quality audio message.

(v) The Communication Medium: Mediums of expression include but are not limited to social media networks, the internet, books, newspapers, radios, letters, photographs, paintings, and videos. Each of these mediums raise distinct questions and have disparate impact on the freedom of expression and other fundamental rights. For example, social media networks have the ability to spread information at a faster rate and for an indeterminate period of time. Additionally, when looking at digital communication, it matters how quickly a person can locate the information using a search engine and, on the website, where it was published.

 

Application of Guidelines to Sigifredo Fonseca González vs. Jael Johana Castro León:

In order to determine whether Castro León violated the fundamental rights of Fonseca González, the Court applied the five considerations outlined above.

(i) The Court noted that Castro León was not the author of the post, although that does not preclude her of the responsibility for the information she shared. Furthermore, Castro León shared the post as a private individual not as a civil servant since she shared it on her personal Facebook account. The Court also reasoned that Castro León did not intend to promote her own interests at the cost of Fonseca González. Hence, the Court determined that her shared post was eligible to enjoy extensive protection.

(ii) The Court proceeded by noting that the Facebook post questioned and accused public officials of corruption, including Fonseca González. Hence, the information was of public interest and not simply about the private life of Fonseca González. Additionally, the accusations in the post were already public knowledge and have been debated by members of the hospital long before appearing on Facebook. Finally, the Court determined that Castro León did not accuse Fonseca González of anything concrete and thus the post was simply general criticism.

(iii) The Court determined that the post Castro León shared was communicated with her contacts on her Facebook account. However, the Court noted that they could spread beyond her contacts to a larger audience if it was re-shared by others. Hence, the Court determined that the impact of this post was high and that the impact on the fundamental rights of Fonseca González was high.

(iv) The Court stated that the information Castro León shared was written and included clear, short sentences as well as images of hospital officials. The Court concluded that the content displayed high communicability because it included simple language and eye-catching images.

(v) Castro León shared the post on Facebook. The Court pointed out that social media has the ability to spread information at an unprecedented rate by sharing indefinite posts, which can increase freedom of expression but can also impact the fundamental rights of other individuals. Yet, the Court noted that the post did not easily come up in searches online or on Facebook. Furthermore, Castro León was not a public figure or celebrity, hence the impact of her opinions was low.

Accordingly, the Court acknowledged that Castro León shared a post that included content regarding Fonseca González’ that could have resulted in harm. Furthermore, the post was made on a social media network with a high degree of communicability and ability to spread information infinitely.

However, the post represented Castro Leon’s personal opinion and was not a formal accusation. When she saw the post in question, she felt compelled to share it because at the time of feelings of helplessness over the hospital’s administration. On this ground, the Court concluded that there had been no violations of the fundamental rights of Fonseca González. Ultimately, Castro León’s speech was protected by the right to freedom of expression since it criticized the actions of public officials, was of public interest, and was not a specific accusation against Fonseca González. Additionally, although the shared post included inaccuracies, Castro León was not required to prove her sources since the topic was of public interest and it was her opinion.

 

The Court thus overruled the judgments of the first instance and appellate courts.

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