Content Regulation / Censorship, Digital Rights, Political Expression, Integrity And Authenticity, Misinformation, Account Integrity and Authentic Identity
Van Haga v. LinkedIn
Closed Mixed Outcome
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The Colombian Constitutional Court held that the Vice President of the Republic’s public statements or opinions do not belong exclusively to the scope of freedom of expression but also to how she fulfills or exercises her duties towards the citizens. Her expressions are covered by the burdens of truthfulness and impartiality, except when she defends her management, responds to critics, or expresses opinions on a political issue. A Colombian citizen filed the application to protect constitutional rights against the Vice President after the Vice President published a post on her Facebook and Twitter accounts in which she consecrated the country to the Lady of Fátima. The Court held that the Vice President of the Republic violated the principle of secularism on which the Colombian state is based. It urged her to avoid linking her personal opinions, and especially expressions of her faith, to the institution she represents and respect the principle of secularism and the guarantee of the fundamental rights to freedom of religion and worship and freedom of conscience.
On May 13, 2020, Colombian Vice President Marta Lucía Ramírez published the following message on her Facebook and Twitter accounts: “Today we consecrate our country to Our Lady of Fatima raising prayers for Colombia so that she may help us to stop the advance of this pandemic and that God may mitigate the suffering of the sick, the pain of those who lost loved ones and allow us to repower our economy to generate millions of jobs to end poverty.” The message was accompanied by an image of The Lady of Fatima and the logo of the national government.
César Enrique Torres Palacios, a Colombian citizen, filed a Tutela (an application for the protection of constitutional rights) against the Vice President that the posts violated his rights to freedom of conscience, freedom of worship, equality, as well as infringed the principle of neutrality of the state in religious matters.
On June 1, 2020, the Court of first instance ruled that the post violated the fundamental rights claimed. The Court ordered that the vice president issue a statement from her Twitter account rectifying her posts. The Court also held that there was not a lack of purpose in the action. Even when the Vice President deleted the disputed posts and published a new one claiming that she was respectful of secularism, she did not accompany those new expressions with the official logos as she did the first time.
The Vice President appealed that decision, restating that there was a lack of purpose in the action because the posts had been deleted.
On July 30, 2020, the Council of State overturned the first instance decision and recognized that there was a lack of purpose in the action because the claims of violations of the fundamental rights ceased at the moment in which the defendant deleted the questioned posts. The Council also considered that the new publication made by the Vice President on social media regarding the acknowledgement of secularism and respect for every religion contributed to overcoming the initial conflict.
The main issue before the Court was whether the Vice President of the Republic violated citizens’ right to freedom of religion and worship and the principle of secularism by publishing in her social networks a message through which she consecrates the country to a figure of a particular religion.
The plaintiff claimed that the consecration violated his fundamental rights to freedom of conscience, freedom of worship, and equality and infringed the state’s principle of neutrality in religious matters. He argued that the messages posted constituted an official act, as the Vice President published the messages on social media using the official logos of the national government. Mr. Torres requested the judge to order the Vice President to remove the disputed message from her social media accounts and publish instead a message in which she expresses that she respects the principle of secularity and that the state has no preference for any specific religion.
Conversely, the Vice President argued that her right to freedom of expression protected the disputed message since she did not publish it as an official statement but as a personal and individual act. Besides that, she also claimed that the application lacked purpose as the conflict was resolved when she deleted her posts and published another message.
Judge Diana Fajardo Rivera delivered the judgement for the Constitutional Court. The Court analyzed the procedural requirements for the constitutional action and concluded that the action lacked purpose since she deleted the controverted messages. The Court also highlighted that Ms. Ramírez had published a new statement claiming that she respected the principle of secularism and religious freedoms.
The Court went further to study the Vice President’s actions, then issued a substantive ruling and adopted preventive measures useful for future controversies.
The Court recognized that even though the Political Constitution did not contain any specific provision regarding state secularity, this principle derived from a systematic interpretation of its values, principles, and rights. The Court asserted that secularity was integrated with other rights and principles, such as the rights to freedom of religion and worship and freedom of conscience (ICCPR, art. 19 and ACHR, art. 12), and principles of neutrality of the state in religious matters and separation of the state and churches. Subsequently, the Court indicated that those rights admitted limitations exclusively for reasons of: “(i) public safety, order, morality and health; (ii) the exercise of the constitutional rights and freedoms of others” [p. 11].
The Court stated that public officials had the legitimate right to religious freedom. Nonetheless, they should act with particular caution when dealing with religious issues because, as public officials, they have the duty to guarantee the secularity principle that respects citizens’ right to equality.
These action guidelines of caution and prudence are a minimal range of autonomy that limits public officials’ right to freedom of expression justified by the need to protect life, honour, beliefs, and other rights and freedoms from Colombian citizens. Indeed, “The fact that they hold a position of guarantor with respect to the prerogatives of the associates requires that they act by the criterion of maximum prudence at the moment of issuing statements that put at risk or constitute harmful interference with such rights” [p. 15].
This argument is reinforced by the fact that when public officials state an opinion, they are not only exercising their right to freedom of expression but also exercising a power-duty of permanent communication with citizens. Their public statements do not belong exclusively to the scope of freedom of expression but also to how they fulfill their duties towards the citizens. Their expressions are covered by the burdens of truthfulness and impartiality, except when they defend their management, respond to critics, or express their opinion on a political issue. In the last cases, “personal and subjective appraisal is possible, and strict objectivity is not required. However, in order to guarantee the formation of a truly free public opinion, these opinions can only be formulated on the basis of a minimum of real factual justification and criteria of reasonableness” [p. 16].
Considering the above, the Court presented some criteria to identify whether statements made by public officials through social media are official information or a personal opinion. First is the particularities of the public official’s personal account on the respective social network. The judges, at this point, need to review: i) the account privacy level in each social network, ii) the account description, and iii) the personal use given to the account. In addition, it is necessary to examine the message that gives rise to the controversy. The following should be considered in this sense: i) how the message is communicated, and ii) it’s content.
When applying these criteria to the concrete case, the Court found first that the Vice Presidents’ Twitter and Facebook accounts were public, which means that everybody could see her posts. Secondly, the description on both accounts included at least one reference to her official position. It also did not have a warning indicating that the information published was personal and did not represent the entity’s views.
Finally, the content published in both social network accounts mostly related to her work as Vice President of the Republic. The Court concluded that the Vice President’s personal Twitter account and Facebook profile disseminated information and opinions of an official nature and not exclusively personal and private matters. The implication is that she voluntarily removed the publications made on these social networks from the private sphere to the public sphere.
Regarding the content of the posts, the Court considered that it had a clear official character, not only because official logos accompanied it but also because the messages were written in the plural and consecrated the whole country to the Lady of Fátima. In the Court’s opinion, if the consecration had been done towards a specific person or a family member, the situation and the ruling would have been different.
The Court, therefore, decided that Vice President of the Republic, Martha Lucía Ramírez, violated the principle of secularism on which the Colombian state is based and the right to freedom of religion and worship of the plaintiff when publishing the disputed messages. The Court held further that even when it found a lack of purpose in action, the Vice President of the Republic should refrain from linking her expressions of faith to the institution she represents.
The Court ordered the Vice President of the Republic to disseminate the constitutional decision on the same social network accounts on Facebook and Twitter that she used to communicate the message that gave rise to this tutela action. Finally, the Presidential Advisor for Communications was ordered, in accordance with the judgment, to train national government officials on the proper management and use of social networks.
Decree 2591/91, which regulates tutela, establishes that every tutela filed should be sent to the Constitutional Court once the regular proceeding is concluded. The Constitutional Court may decide to select it for a special review. The Constitutional Court chose this case for its consideration.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Constitutional Court established clear limits to public officials’ freedom of expression. Nevertheless, the Court’s reasoning on how public officials’ social media accounts have a general nature is aligned with the comparative findings of Knight First Amendment Institute v. Donald J. Trump No. 17 Civ. 5205 (NRB) USCA17-5205 (2nd Cir. 2019). This reasoning, in the end, is helpful for cases in which public officials block access to their social media accounts, undermining access to information and, to some extent, newsgathering.
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.
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