Content Regulation / Censorship, Indecency / Obscenity, Intermediary Liability
“7×7” LLC v. Roskomnadzor
Closed Expands Expression
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The Constitutional Court of Colombia issued a decision unifying its jurisprudence after deciding multiple cases about whether if critical, offensive, insulting messages, or uncomfortable accusations in social media platforms are protected under the constitutional guarantee for freedom of expression, or if on the contrary, this speech must give way when weighed against other rights such as the right to honor, good name and privacy. In this ruling, the Court decided jointly four different cases about online publications in which natural persons proffered derogatory remarks or insults against other individuals, who in turn filed tutela actions, arguing that such speech violated their rights to honor and good name. The plaintiffs —in most of the cases— also asserted that both the individuals who made the disparaging remarks and the internet and social media platforms where they were disseminated bore responsibility. Thus, the Court established its position regarding insults on the internet favoring the protection of freedom of expression, an protecting intermediaries from liabilities.
Given that the decision here analyzed condenses four different cases, the factic circumstances of each one will be described separately.
Case 1: Mr. JWFC v. Google LLC and Google Colombia Ltda.
On January 30, 2011, through an anonymous profile, a blog was posted on the platform blogger.com, owned by Google LLC. In the post Mr. JWFC was described as a scammer. JFWC requested Google, on three separate occasions, to delete the content. Google LLC denied the requests, arguing that the publication was not inappropriate. JWFC filed a tutela action against Google LLC and Google Colombia Ltda, requesting the protection of his rights to privacy, good name and honor, and the deletion of the content. The defendants argued they didn’t have legal standing, since they were intermediaries that do not control, manage, or create content.
On August 1st, 2016, the 21st Civil Municipal Judge of Bogotá denied the action presented by Mr. JWFC. For this judge neither Google LLC or Google Colombia Ltda had an obligation to correct or delete the information published by users, since they lacked this type of control. The decision was not appealed.
Nonetheless the Constitutional Court of Colombia reviewed the case and proffered the decision T-063A of 2017, granting protection to the rights of JWFC. However, the Plenary of the Constitutional Court annulled this decision, arguing that matters of constitutional relevance were ignored, such as the prohibition of censorship, the constitutional and legal limits of freedom of expression and the role of internet intermediaries in the exercise of this right in digital media. Hence, the Court remanded the case for a new decision.
Case 2: Mrs. SMAC v. YRV, JMDD, APAN, Facebook and Caracol.
On September 11, 2017, Mrs. YRV published, on her personal Facebook profile, and on the profile of an automobile club she presided —“Santander Volksguane”—, a photography of Mrs. SMAC, a radio announcer, accusing her of being a swindler. This content was shared by JMDD and APAN, who made similar accusations. Mrs. SMAC claimed that she was fired from her job due to these Facebook posts. SMAC filed criminal charges against YRV, JMDD and APAN, and filed a tutela action requesting the deletion of the publications against her. The defendants, YRMV, JMDD and APAN, argued that their complaints made on social media were well-known facts.
In the tutela proceedings, Caracol —a media company— and Facebook Colombia joined in. Caracol explained that the radio station that fired SMAC was no longer its property. For its part, Facebook Colombia highlighted the existence of better mechanisms to report inappropriate content in this social network.
The 1st Municipal Labor Judge of Bucaramanga, on October 3rd, 2017, rejected the plaintiff’s claim, arguing that it was not proved that the publications were actually seen by more people, or that the plaintiff used Facebook’s tools to delete the content.
Case 3: Mr. OJCA v. two citizens
Mr. OJCA, the manager of the San Giorgio II building in Medellín, was accused several times (August 26, September 8 and 2017, and October 2 and 3, 2017) of being a thief and a liar, through publications on Facebook made by tenants of the building. Mr. OJCA filed a tutela action against the people who made the aforementioned publications.
On October 19, 2017, the 3rd Municipal Criminal Judge of Medellín denied the request, arguing that the matter should be studied by the ordinary jurisdiction and not the constitutional one. The plaintiff appealed this decision. On December 4, 2017, the 5th Circuit Criminal Judge of Medellín upheld the lower instance ruling.
Case 4: Mr. RMM v. RGRB
On May 20, 2015, the Colombian Society of Authors and Composers (SAYCO) removed the partnership of Mr. RGRB, on account of several publications he made on Facebook and Youtube messages, in which he made derogatory remarks against Mr. RMM, a member of the Board of Directors of SAYCO and 1st public notary of Santa Marta. Additionally, Mr. RMM filed a tutela action, alleging a violation of his fundamental rights to a good name, dignity and privacy and requesting the immediate elimination of the content published by Mr. RGRB. Mr. RGRB objected to these claims, arguing that what he published was not defamatory since it was based on true facts.
On February 1, 2018, the 1st Civil Municipal Judge of Bogotá rejected the action arguing that the correct course of action was filing criminal charges and didn’t consider that the plaintiff’s privacy was affected. On March 9, 2018, after RMM appealed the decision, the 16th Civil Circuit Judge of Bogotá upheld the lower instance ruling.
These four cases were accumulated into one so the Constitutional Court of Colombia could issue a final decision on the matters presented here and unify its jurisprudence regarding insults on the internet.
Justice José Fernando Reyes Cuartas delivered the opinion of the Court. The Tribunal analyzed three legal issues, common to all four cases:
First: whether the tutela action between private individuals was the adequate judicial action in cases where the plaintiff considers that publications made in social media platforms breached their rights to honor and good name.
In this regard, the Constitutional Court considered that the tutela actions between private individuals, in cases about freedom of expression and other fundamental rights, is adequate as long as the plaintiff previously exhausted some measures. In the first place, the plaintiff must have requested the deletion or correction to the private individual who made the publication. Secondly, the plaintiff must request the deletion or correction of the post to the platform in which the content was published or disseminated, as long as the platform allows users to do so. The Court also considered that matters discussed in tutela actions must be of constitutional relevance.
About this last condition, the Constitutional Court outlined a set of criteria to identify whether a certain matter is of constitutional relevance and deserves the analysis of a constitutional judge. Thus, the Court deemed necessary a contextual analysis upon several elements: (a) who’s communicating, since it’s important to establish the role of this person in society- a journalist, a public official, a legal or a natural person, in order to assess the impact of their expression; (b) about whom we are communicating about —that is the nature of the affected party—, for which it’s important to note if it’s a private individual, a legal person or someone of public relevance and, (c) how’s the communication disseminated, for which it’s important to understand the content of the message, the media used for its disseminations and the impact for both parties.
The Court clarified that in cases of harassment and bullying, this circumstance was enough evidence of the constitutional relevance of the case.
Second: whether there is a prevalent protection in favor of the right to freedom of expression in Colombia’s legal system putting it it above other rights such as honor, privacy and good name, in cases in which controversial expressions, such as insults on the internet could affect them.
The Constitutional Court was emphatic in stating that indeed this is the case. For this Tribunal, from Article 20 of the Constitution four presumptions are followed in favor of freedom of expression that allowed the Court to conclude freedom of expression’s priority over other rights. These presumptions are: 1) A presumption of constitutional protection in favor of freedom of expression; 2) A presumption of priority in favor of freedom of expression when in conflict with other rights, values and principles; 3) A suspicion that any measures restricting freedom of expression might be against the Constitution, and the duty to performs a strict constitutional control to assess whether any limitation to the aforementioned right is valid, or not, in the country’s legal system, and 4) A general prohibition on censorship, as an invincible presumption, which makes it possible to state that controls on the content of expressions are a form of censorship.
Third: whether internet platforms, or social media sites, are responsible in cases where there could have been possible violations to the fundamental rights to honor or good name, when such platforms have been used to disseminate harmful publications.
For the Constitutional Court, internet platforms and social media sites could not be held responsible for the content their users post, since they are mere internet intermediaries. “Establishing such responsibility would limit the dissemination of ideas and would give [intermediaries] the power to regulate the flow of information on the internet, thus the responsibility falls directly in the person that uses offensive or defamatory expressions” (p. 50).
The Court specified that, regarding the exercise of freedom of expression, relevant internet actors can be classified into two categories: Internet users, who can be anonymous or identifiable, and Internet intermediaries, “who are the ones who make possible, or determine, online interactions” (p. 49). Internet intermediaries can be, in turn, subclassified between internet services or connection providers and those who host content.
On the constitutional level, the Court argued, it is not acceptable for internet intermediaries to restrict content, nor to “catalog them, prima facie, as violating the good name and honor” (p. 50). In the opinion of the Tribunal, that would be an unjustified sacrifice to freedom of expression that would give way to content traffic restrictions.
Nevertheless, the Court clarified, this doesn’t mean that in case where the violations of rights are proved, the judicial power can’t order —after a legal proceeding— the removal of harmful online content.
The Constitutional Tribunal also highlighted that while anonymity is protected under the right to freedom of expression, it can be restricted, or give way to liability, in cases where violations to fundamental rights are found.
After providing an answer to these three legal questions, the Colombian Constitutional Court concluded that, first, freedom of expression is very important, and deserves special protection, in the digital environment, since online services enable simple and quick access to a big audience. Hence, restrictions to this right can only be applied in cases of flagrant violations to the right, good name, and privacy, and after careful balancing of rights. Second, the Court considered that the protection of fundamental rights, possible affected by online publications, can be exercised through tutela action, as long as all the aforementioned additional conditions highlighted in this decision are met. Third, users are responsible for the content they post online, which means that internet intermediaries can enact self regulating processes, but never exercise prior restraints to online content (p.51).
Based on this analysis, the Court considered that: (1) In Case 1 there was no controversy to address, since the content had been already eliminated; (2) In Cases 2 and 3, the Court considered that the matter was void of constitutional relevance since the impact that the publications had on the affected parties was minimal. Thus, the tutela action was an inappropriate means of judicial control. (3) In Case 4, the Court argued that the publications against RRM were made over a lapse of 7 years, which led the Tribunal to conclude this was a case of harassment, of the utmost constitutional relevance. The Court granted protection to the plaintiff’s right to honor and good name. To reach this conclusion, the Constitutional Court applied a proportionality test, in which the Court noted that the defendant published several times humiliating and harmful content against the plaintiff. The Tribunal argued there wasn’t a legitimate aim in the defendant’s posts, and thus ordered the defendant to delete the content from Facebook and Youtube.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision represents a significant advance for freedom of expression in three crucial aspects. First, the Court deemed that insults and disqualifications made through the Internet (whether on platforms, blogs, or social networks) do not have sufficient relevance to justify the intervention of the constitutional judge, except when the action is repeated and thus constitutes harassment. Second, the Court stressed constitutional premises regarding the protection of freedom of expression are in line with the Inter-American standards. Third, in light of the ongoing debate on Internet intermediary liability, the Court confirmed that the best standard to ensure free expression was to hold liable only the content creators, to avoid prior censorship within the digital world.
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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