Case Summary and Outcome

The Constitutional Court held that Article 55 of the Press Act Number 29 of 1944 was unconstitutional because it could lead to a self-censorship mechanism, thereby illegitimately limiting freedom of expression. In 2020, a group of citizens filed an unconstitutionality action against Article 55 of the Press Act which established rules on the burden of the proof in civil liability proceedings for communications that damaged honor and reputation. The Court noted that the provision of a preferential civil liability regime for damages allegedly caused by opinions spread through mass communication channels could lead to self-censorship mechanisms, that would have  a paralyzing effect and obstruct the free flow of information. In this sense, the rule constitutes a prohibited means to achieve a legitimate end. The Court then concluded that this provision of the Press Act violated the right to freedom of expression and press of individuals, journalists, and mass media (Articles 20, 73, 74, and 93 of the Constitution).

---

Facts

In August 2020, Ana Bejarano, Emmanuel Vargas, and Vanessa López filed an unconstitutionality action against Article 55 of the Press Act Number 29 of 1944.

The rule states: “Article 55 – Regardless of the criminal responsibility referred to in the previous articles, anyone who by any effective means spreads ideas, through printing, broadcasting, or cinematography, that causes damage to another will be obliged to compensate the alleged victim unless the sender proves that he was not at ”. In this way, the norm established a preferential regime on the burden of the proof in tort claims for damages produced by a publication. In effect, this means that the defendant would have to prove their innocent intent or professional due diligence, rather than the plaintiff proving harm.

Plaintiffs argued that the article violated the right to freedom of expression as enshrined in the Constitution, the American Convention of Human Rights, and The International Covenant on Civil and Political Rights [para. 3]. From their perspective, the rule is contrary to a democratic system as it prevents the free flow of information by generating a chilling effect on civil society and journalists. The measure constitutes an unreasonable and disproportionate measure that directly affects the right to freedom of speech, information, and the press.

They maintained that the change in the evidence rules violates the constitutional protection of professional secrecy of journalists. According to the plaintiffs the reverse of the burden of proof, by which it is the sender of the information who, when sued, must dispute the presumption of guilt, violates the confidentiality of the source and the professional secrecy of the journalists [para. 11].

 

---

Decision Overview

In May 2021, Judge Gloria Stella Ortiz delivered the opinion of the Constitutional Court.

The main issue before the Court was whether a rule that reversed the burden of the proof in civil liability proceedings for defamatory expressions constitutes an unconstitutional limit on freedom of expression.

Plaintiffs filed an unconstitutionality action arguing that the norm violated the Colombian Constitution (Articles 20, 29, 73, 74, and 93), the American Convention of Human Rights (Article 13), and the International Covenant on Civil and Political Rights (Article 19). According to them, the Law does not recognize the supreme value of freedom of expression in a democratic society and the need to guarantee the free flow of information.

The Plaintiffs grounded their claim on two main arguments: The rule violates the rights to due process and freedom of expression of the citizenry.

In the first argument, the article establishes a reverse of the burden of the proof which results in an unreasonable and disproportionate measure for the intended purpose. When applied in civil claims against journalists, it would violate due process as there is no justification for departing from the general procedural principle which states that each party must prove what they allege. Journalists would have to dispute the presumption of guilt, which may result in a violation of the protection of the confidentiality of sources and professional secrecy.

Regarding the violation of freedom of expression and press, the article constitutes a type of censorship that is not allowed by the national and regional human rights framework. It is a measure of disproportionate ulterior responsibility, that would generate self-censorship. The enhanced exposure to liability for disseminating ideas would have a chilling effect on society. The simple threat of harsh sanctions may hinder citizens from sharing information. The presumption of guilt is excessive, as communicators would have to demonstrate that they acted lawfully.

The concept of a “chilling effect”, according to the plaintiffs, refers to those instruments of control or judicial sanction that, by their civil or criminal consequences, make communicators fearful of repercussions or retaliatory actions. This in turn would lead to self-censorship, which, ultimately, blocks the constant flow of information.

The Court began analyzing the context in which the disputed rule was adopted. The Press Act Number 29 of 1944 was approved during a tumultuous period in Colombian history. By mid-1943, there were rumors of a possible coup against the government of President Alfonso López Pumarejo [para. 16]. The alleged coup promoters were Francisco Pérez and Laureano Gómez, directors of the Journal “The Voice of the People” (La Voz del Pueblo) and The Century (El Siglo), respectively. In July 1944, while the President was in the city of Pasto, the attempted coup happened, and the Minister of Foreign Relations was designated as president. One of his first measures was to establish temporary censorship of the press. In the application of this Law, the press was silenced by Government intervention until 1957 [para. 18].

The Press Act has the objective to regulate the responsibility of the person who communicates a message through mass media. The Law applies to everyone who publishes an expression, including citizens, journalists, and media outlets. It establishes three non-excludable liability regimes applicable to the exercise of publishing information: sanctioning, criminal, and civil. Specifically, Article 55 challenged by the Plaintiffs in this case, establishes a presumption of guilt in civil proceedings on anyone who causes damages to a third person through their expressions, independently of the criminal activity. The Court first framed the analysis on the protection of freedom of expression according to the Constitutional and Regional human rights frameworks. The Court described four key elements for its protection.

The first element is the broad margin of tolerance to risks. In this sense, the Court affirmed: “The exercise of freedom of expression carries inherent risks that, to a certain extent, must be tolerated due to the importance of the benefits that it brings in contrast. Consequently, when carrying out a balancing exercise between the implicit social risk of freedom of expression, and the consequences of its limitation or suppression, the Court has chosen to give a greater margin of tolerance to the risk derived from the possible damages caused by the exercise of freedom of expression” [para. 51.1].

Secondly, the Court considered there is a presumption of protection of any expression. Although this implies that prior censorship is not allowed, some content is prohibited, such as child pornography [para. 51.2].

Thirdly, the Court considered the primacy of freedom of expression over other rights. According to the Court, “[w]hen the exercise of freedom of expression,  conflicts with other rights, values or constitutional principles, primacy must be given, in principle, to freedom of expression” [para. 51.3].

And finally, according to the Court, any limitation to freedom of speech should be considered “suspiciously unconstitutional”. “Limitations to freedom of expression are constitutionally suspect and are subject to strict constitutional control, especially those that have to do with expressions on matters of public interest” [para. 51.4].

Considering these protections, the Court concluded that any kind of regulation that may constitute prior censorship would violate the right to freedom of expression, information, and the press.

However, the Court pointed out that there are resources for subsequent judicial sanction that, due to their severity and intimidating nature, lead to self-censorship [para. 71]. While subsequent liability remedies are allowed, they are prohibited by the Constitution and regional instruments of human rights when they can produce a chilling effect that leads to censorship.

The Court defines that the “chilling effect” occurs when “in the journalistic exercise, a media outlet or person is dissuaded from issuing certain information, due to the possible civil or criminal consequences of a disproportionate nature that may be imposed. Self-censorship is incurred, considering that, even when the information is true, acquired, and issued in good faith, an eventual judicial process may impose burdens or sanctions that the person is not able or willing to bear. This, in addition, generates a domino effect in the rest of journalistic agents and operators that interrupts the free flow of information in the democratic system” [para. 71]. The Court expressly referenced three cases from the Inter-American Court of Human Rights: Fontevecchia y D’Amico v. Argentina, López Lone y otros v. Honduras, and Granier y otros (Radio Caracas Televisión) v. Venezuela.

The Court outlined that in some cases, this type of civil action against journalist has been used as a mechanism of Strategic Lawsuit Against Public Participation (SLAPP). This has led to the adoption of Anti-SLAPP laws, which seek to rule out frivolous lawsuits whose sole objective is to intimidate and impede the free flow of information [para. 80].

Then the Court moved forward to analyze the two main issues, on whether the disputed rule constituted a violation of the due process right and the freedom of expression. For this, the Court analyzed the proportionality and reasonability of the measure. The Court applied a strict test to the rule because the measure may affect a fundamental right such as freedom of expression. The Court defined the method of applying a strict test in the following terms: “(…) the judge must verify that: i) the measure pursues a purpose that is “constitutionally imperative.” In addition, the judge must verify ii) compliance with the requirements of the suitability principle. The measure is suitable if its application is effectively conducive to achieving the intended purpose. Likewise, it must iii) be necessary, that is, that there are sufficient elements of judgment to conclude that the measure is the “least restrictive” of the fundamental right involved, “among all those [alternatives] that are at least equally suitable”. Finally, it is required iv) that the measure be proportional in the strict sense. That is, that the benefits of adopting the measure exceed the restrictions imposed on other constitutional principles and values” [para. 103].

Regarding the first charge of violation of due process, the Court considered that the legal framework accepts variations and flexibilities on the general system of burden of the proof. “In this sense, although any normative provision that regulates procedural aspects will have, in principle, a variation of the procedural elements, it does not imply, therefore, that the fundamental right to due process of the parties intervenes. The defendant has, in any case, the possibility of refuting the presumption of guilt imposed by the Legislator, under the defense guarantees provided in the jurisdictional system” [para. 101]. So, the Court did not find a violation of the due process right on the adoption of a regime that changes the burden of the proof in consideration of the special circumstances of the case.

However, the Court did find a violation of the freedom of expression of both, journalists and citizens as the rule did not pass the strict proportionality test. Although the protection of honor and reputation are legitimate ends with constitutional protection [para. 104], the employed measure was not adequate to the end. The Court arrives at this conclusion by considering that when applied to journalists the norm may endanger the protection of the sources, and when applied to individuals may result in a chilling effect.

Regarding the journalists, the rule implies that they would have to demonstrate their journalistic diligence when damage has been caused because of the information issued. The measure implies that “whoever exercises their expression must demonstrate, in any case, that they acted without fault, and that, when issuing information about another person, they acted under the criteria of truthfulness and impartiality” [para. 102].

The showing of due diligence “collides with the protection of confidentiality of the source. This safeguards both the personal integrity of human sources, as well as the journalist and his work activity since confidentiality is intrinsic to journalism and is therefore protected by articles 20, 73, and 74 of the Constitution. This guarantee includes, following the jurisprudence of this Court all the documents “that make up the material of their journalistic activities (interviews, notes, writings, files, files, videos, audios, etc.)”. There is, in turn, a close relationship between journalistic diligence and the sources, since these are the ones that make up the informative investigation” [para. 109].

“In this sense, it is inevitable to conclude that, in order to demonstrate that they verified their sources, and developed a reasonable exercise of investigation, the journalist or media outlet must show what was, in practice, the process that they used to arrive at the information that they issued. In other words, they will have to point out which were their initial sources and the files, audios, or other elements according to which you were able to carry out the contrast exercise” [para. 111].

On the other hand, when applied to individuals the rule creates an incentive to restrict the sharing and free flow of information. For this, the Court outlines the significance of internet platforms in the public debate and that the norm will apply to all the expressions posted on them: “Any manifestation of expression, exercised by any member of society through said virtual mediation spaces, will be subject to the standards of the demanded norm” [para. 113]. The reverse burden of proof on individuals can lead to the initiation of legal disputes to silence or obstruct social debate and have a paralyzing effect based on fear of an eventual judicial process.

Furthermore, the Court understood that the measure was not necessary for a democratic society. The existence of less restrictive mediums to protect the rights of honor and good name turns the norm unconstitutional.

In conclusion, the Court declared Article 55 of the Press Act 29 of 1944 unconstitutional by considering that the reversal of the burden of the proof may lead to mechanisms of self-censorship on journalists and citizens, representing an obstruction of the free flow of information.

---