Cyber Security / Cyber Crime, Digital Rights, Freedom of Association and Assembly / Protests, Hate Speech
The Case of Udruženje Q za promociju i zaštitu kulture, identiteta i ljudskih prava queer osoba
Bosnia and Herzegovina
Closed Mixed Outcome
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The Ninth Review Hall of the Constitutional Court of Colombia held that there is an evident pattern of online violence against women journalists as a result of their reporting on the activities of political figures in the public interest. Hence the Court ordered a series of transformative measures to prevent, investigate, and punish this phenomenon, while partially rejecting the petition because the plaintiffs did not notify the National Electoral Council about the online harassment. The journalists Victoria Eugenia Dávila, Camila Zuluaga Suárez, Lina María Peña, Lariza Pizano Rojas, Andrea Dávila Claro, María Jimena Duzán, Claudia Guristatti, Máryuri Trujillo and Cecilia Orozco filed a tutela action—a constitutional claim to protect their fundamental rights—against the National Electoral Council of Colombia because they suffered misogynist and online sexist violence on the social network Twitter, which sought to censor them and demean their profession. Specifically, they argued that the National Electoral Council did not adopt any measures to prevent or sanction sexist violence perpetuated or tolerated by members and affiliates of political parties in their social networks. For its part, the National Electoral Council argued that it has no competence to control or sanction the behavior of political actors on Twitter. It also noted that the petitioners did not prove that they had notified the National Electoral Council, nor the political parties or social movements, of the online attacks they had suffered. The Court held that the petitioners did not prove that they had informed the National Electoral Council or the political parties and social movements of the acts of online sexist violence that they alleged. However, the Court held that in Colombia there is a pattern of online violence exercised by third parties against women journalists that the State should not ignore. Thus, the Court recognized the discrimination that women suffer through online violence and held that it leads to self-censorship. In addition, the Court noted that there is no legal framework in Colombia to prevent and punish online violence against women journalists. Finally, the Court ordered a series of measures to eradicate online violence against women. These measures include the implementation of ethical guidelines by political parties to sanction online violence and of a procedure to ensure the rights of women victims of any form of violence, and the need to enact legislation about sexist digital violence, among others.
Raissa Carrillo Villamizar —Coordinator of Attention and Defense of Journalists of the Foundation for Press Freedom (FLIP)— and Pedro Vaca —Executive Director of FLIP at the time the tutela action was filed— on behalf of journalists Victoria Eugenia Dávila, Camila Zuluaga Suárez, Lina María Peña, Lariza Pizano Rojas, Andrea Dávila Claro, María Jimena Duzán, Claudia Guristatti, Máryuri Trujillo and Cecilia Orozco (hereinafter, the petitioners), filed a tutela action (acción de tutela) against the National Electoral Council after having been victims of numerous misogynistic and sexist attacks on the social network Twitter.
The petitioners argued that online violence on social networks is a new form of aggression against women journalists based on their gender. They explained that they had received online attacks of a misogynist and sexualized nature in response to their journalistic work. Hence, they considered that their rights to freedom of expression, non-discrimination, human dignity, and physical integrity were violated.
By way of illustration, the petitioners detailed that on several occasions, after publishing journalistic investigations of public interest against Colombian politicians, they received the following insults on the social network Twitter: “envious gossiper” (chismosa envidiosa); “guerrilla witch” (bruja guerrillera); “skinny old lady” (vieja flacuchenta); “fat woman” (gordita); “shameless, left-wing, miserable, corrupt, and mediocre journalist” (sinvergüenza, de izquierda, miserable, corrupta, y periodística de pacotilla); “the truth, Colombians, this woman @MJDuzan should be raped, spat on, chopped with a chainsaw and hung in Plaza Bolivar, honor the name of paramilitaries” (sic) (la verdad colombianos, hagan que a esta mujer @MJDuzan la violen, la escupan, la corten con una motosierra y la cuelguen en la plaza bolivar, honren el nombre de los paramilitares); “crazy psychopath” (psicópata loca); “disgusting woman, disgusting mother” (asco de mujer, asco de madre); “hitwoman” (sicaria); “freedom-fighter disguised as a journalist” (guerrillera disfrazada de periodista), among many other aggressive and misogynistic comments delivered, or instigated, in many instances by political militants.
The petitioners added that these comments “are discriminatory and infantilize the profession of women journalists, [and] in some cases the comments include members of their families and take into account their role as mothers.” [para. 4]
In addition, the petitioners alleged that the National Electoral Council, the political parties, and the social movements did not take any measures to make the violence cease, nor did they sanction those responsible for the misogynist insults.
Moreover, the petitioners explained that there was a pattern of gender-based violence in digital environments against women journalists that “benefits certain groups or political actors through strategies of disinformation, amplification, and intimidation.” [para. 2] In turn, they remarked that these online aggressions were threats that endangered their freedom of expression, physical integrity, and health, and that ultimately led to the self-censorship of women journalists.
Finally, the petitioners requested a declaration by the judiciary explaining that the National Electoral Council does not have a mechanism to process complaints of digital gender violence. They also requested the creation of a mechanism to process such complaints. Furthermore, they requested that the National Electoral Council issue a public statement regarding the duty of political parties and social movements to respect freedom of the press and the importance of female journalists. Finally, the petitioners asked the judiciary to recognize that in Colombia there is a pattern of digital aggression against women journalists.
For its part, the National Electoral Council argued that it has no faculties to control or sanction the behavior of political actors in their private sphere, or their publications on Twitter. It explained that the authority to investigate and sanction members of political parties or movements belongs to each political party or movement. Likewise, it argued that the petitioners did not prove that they had notified it, in the past, of the aggressions suffered—nor to the political parties or social movements.
For its part, the Office of the Attorney General explained that the petitioners suffered online aggression by citizens who reacted to the comments posted by political leaders. In addition, it said that the online violence denounced by the petitioners was tolerated by the political parties and their members and by the National Electoral Council because they did not take any measures to prevent or sanction these attacks. However, it also noted that the petitioners did not denounce these online aggressions before the National Electoral Council.
On May 26, 2022, Subsection A of the Third Section of the Administrative Tribunal of Cundinamarca rejected the tutela action. The court argued that although the National Electoral Council can sanction political parties, it does not have the competence to directly sanction members of political parties or their affiliates since such attribution corresponds to each political party.
In addition, the tribunal held that it was not proven that the National Electoral Council was notified of the alleged conduct denounced by the petitioners regarding online violence.
In turn, the court explained that it was not feasible for the National Electoral Council and the political parties to control all the messages and contents published on social networks. Likewise, the court concluded that there was no evidence of online violence against the petitioners coming from political parties or movements—or their members or affiliates.
However, the Court recognized the existence of an evident pattern of online or social media violence exercised by third parties against women, especially against women journalists.
On this last point, the court considered it necessary to adopt various measures aimed at preventing online violence against women journalists. Thus, the court ordered “the National Electoral Council to distribute the judgment amongst all political parties and movements in the country and to publish on its web page the electronic addresses of all political parties and movements where citizens may file complaints against members and affiliates.” [para. 16]
Likewise, the court ordered all political parties and movements to adopt in their codes of ethics behavioral guidelines for their members regarding the use of social networks to prevent these communication tools from becoming instruments of online violence against women. Also, the court ordered the ethics committees of political parties to prevent their members and affiliates from using their social networks to incite online violence in the context of their political activity.
On June 10, 2021, Jonathan Bock Ruiz—executive director of FLIP—, Raissa Carrillo Villamizar, Daniela Ospina Noriega—legal advisors of FLIP—, Carolina Botero—director of Karisma Foundation—and Elisa Lees Muñoz—executive director of International Women’s Media Foundation—, asked the Constitutional Court of Colombia to review this case in order to expand the jurisprudence regarding online violence against women journalists.
The petitioners, along with the rest of the organizations, explained that “there is no normative regulation regarding the protection against online violence provoked and instigated by some political figures.” [para. 20] In addition, they argued that political parties should have a higher degree of responsibility for the actions of their members and candidates when it comes to violence against women. They stated that political parties have a duty to take disciplinary actions against their affiliates and members when they post aggressive comments against women journalists.
In addition, the petitioners explained that gender-based political violence requires rigorous analysis and weighing or balancing of rights since—in some circumstances—it could have effects contrary to the political discourses protected by freedom of expression.
On the other hand, the decision of the Administrative Tribunal of Cundinamarca was not challenged by the National Electoral Council, or the rest of the parties involved in the process.
Justice José Fernando Reyes Cuartas delivered the opinion for the Ninth Review Hall of the Constitutional Court of Colombia. The Court had to decide whether the National Electoral Council violated the petitioners’ rights to freedom of expression and opinion, non-discrimination, human dignity, and life and integrity “by not sanctioning the actors, parties, and political movements, who allegedly encouraged or tolerated the online aggressions of which [women journalists] have been victims after publishing their journalistic investigations.” [para. 37]
The petitioners argued that the National Electoral Council violated their rights to freedom of expression, non-discrimination, human dignity, and to life and integrity after not taking any measures to stop the misogynistic online violence they were victims of due to their journalistic work. The petitioners also remarked that there was a pattern of online violence against women journalists that was promoted by certain groups or political actors who have benefited from the harassment they suffered through strategies of intimidation, threats, and disinformation. In turn, the petitioners expressed that the present case provides the Colombian Constitutional Court with an opportunity to eradicate such patterns of online gender-based violence in social networks, such as Twitter.
First, the Court examined the phenomenon of online violence against women journalists. In general terms, the Court recalled that the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women or “Convention of Belem do Para” established in Article 1 that “violence against women” means any act or conduct, based on gender, which causes death or physical, sexual or psychological harm or suffering to women, whether in the public or the private sphere.
The Court then defined online violence against women as “any act of gender-based violence against women committed with the assistance of Information and Communication Technologies —such as cell phones and smartphones, the Internet, social media platforms or email— directed against a woman because she is a woman or which disproportionately affects women” [para.44 ], as laid out in Colombian Constitutional Court judgment, T-280, 2022, and the 2018 U.N. Report of the Special Rapporteur on violence against women, A/HRC/38/47.
Then, the Court explained that online violence against women produces severe psychological, emotional, physical, economic, and social harms and causes the exclusion of women from digital environments and their “self-censorship”, as it was said in the report of the Organization of American States, Cyber-violence and cyber-bullying against women and girls in the framework of the Belém Do Pará Convention from 2022. It held that states must recognize the seriousness of this form of violence, implement internal prevention measures, design suitable and effective judicial mechanisms, seriously investigate these acts, identify those responsible and punish them, and establish reparation measures.
Next, the Court stated that “online violence has not been regulated in Colombia nor has it had a broad jurisprudential development.” [para. 47]
The Court recalled that the IACtHR held that journalism can only be carried out freely when journalists are not subjected to violence or threats since “these acts constitute serious obstacles to the exercise of freedom of expression,” following the case of Vélez Restrepo and Family Members v. Colombia. [para. 57] On this point, the Court reiterated that in its judgment T-140 of 2021, it found that the different forms of discrimination to which women journalists are subjected because of their gender are an obstacle to the exercise of their profession. The Court also held that “the pattern of discrimination against women journalists in the exercise of their profession has manifested itself through multiple types of violence, including digital violence.” [para. 57]
Moreover, the Court explained that the IACHR’s Special Rapporteur for Freedom of Expression [Report on Women Journalists and Freedom of Expression, 2018] identified online violence as a discriminatory practice that affects women journalists disproportionately in comparison to their male colleagues, “and is generally misogynistic and sexualized in content. This type of violence leads to self-censorship and is a direct attack against women’s visibility and full participation in public life.” [para. 59] Likewise, the Court explained that in said report the Special Rapporteur held that States must prevent online violence against women journalists and have a duty to adopt adequate and effective sanctions.
The Court also held that Colombia should adopt a comprehensive legal framework to eradicate online violence against women following the recommendations of international organizations.
Subsequently, the Court had to examine the right to freedom of expression in the context of social networks in Colombia. On this issue, the Court remarked that Article 20 of the Constitution protects the right to freedom of expression. It also recalled that freedom of expression is essential for the existence of a true participatory democracy and includes the freedom to express ideas and opinions, the freedom to disseminate and receive information, freedom of the press, and the prohibition of censorship, as laid out by the Colombian Constitutional Court in cases T-203/2022 and C-010/2000.
The Court also recognized that the internet is a form of communication that has revolutionized society. On this point, the Court explained that “the exercise of the right to freedom of expression on the internet depends, to a large extent, on a numerous group of private actors called intermediaries, without which the circulation of content would not be possible. Among the most relevant are platforms such as Facebook, Twitter, or Instagram.” [para. 69]
In addition, it recalled that in case T-179/2019, it was held that “offline” freedom of expression is the same as “online” freedom of expression, and thus the scope of constitutional protection afforded to them is the same. Likewise, the Court said that under Article 20 of the Constitution and Article 13 of the American Convention on Human Rights “it is not possible to verify the content of what any person using social networks wants to publish, transmit or express since the contrary would lead to subject its disclosure to prior authorization.” [para. 70]
In any case, the Court recognized that these technologies facilitate the speed, spontaneity, and greater scope of freedom of expression while posing a greater risk to rights such as honor, privacy, or image. On this point, the Court held that “the protection and limits of freedom of expression by high-impact printed media also apply to virtual media,” [para. 71] as it was argued in case T-050/2016. To illustrate these limits to freedom of expression, the Court provided clear examples of when freedom of expression should be limited: propaganda in favor of war; incitement to terrorism; hate and discriminatory speech; advocacy of crime and violence; child pornography; and direct and public incitement to commit genocide.
Subsequently, the Court had to apply the legal standards developed above to the present case. In this context, the Court had to decide whether the National Electoral Council violated the rights to freedom of expression, non-discrimination, human dignity, and life and integrity of the petitioners for not sanctioning the political parties and movements for the online aggressions they suffered.
The Court recalled that according to Article 265 of the Constitution, the National Electoral Council must regulate, monitor, and control all electoral activity by political parties and movements. In addition, the Court explained that under Article 13 of Law 1475 of 2011, the Council has the faculty to issue sanctions on political parties and movements when they violate the legal system. Further, the Court explained that per under Article 4 of Law 1475 and 41 of Law 130 of 1994, political parties and movements must create ethical control councils to regulate the conduct and activities of their members and affiliates. However, the Court held that no rule in the Colombian legal system establishes whether the National Electoral Council’s faculties should be carried out ex officio or at the request of a party in the face of alleged acts of online violence against women.
The Court considered that an endless number of posts or publications are published on social networks daily. Furthermore, it explained that not only would it be impossible for the National Electoral Council and the political parties to constantly monitor the activities carried out by their members in their social networks, but that this could also lead to censorship. In this regard, citing case T-203/2022, the Court remarked that prior censorship is prohibited.
For these reasons, the Court concluded that for the National Electoral Council or the political parties to carry out controls or adopt sanctions in the face of online violence against women, “it is necessary that the victims bring to the attention of the political parties or movements, as well as the National Electoral Council or the competent authorities, the acts that they consider transgress the legal order.” [para. 112]
Consequently, the Court agreed with the Administrative Court of Cundinamarca regarding the fact that “the plaintiffs did not prove that they had informed the National Electoral Council, the ethics committees or authorities, such as the Attorney General’s Office, about acts of online violence to begin sanctioning proceedings.” [para. 113] Hence, the Court held that it was not appropriate to attribute any liability to the defendant.
In light of this context, the Court concluded that the National Electoral Council and the political parties and movements did not violate the rights of the petitioners.
Notwithstanding the foregoing, the Court explained that the present case required “a study based on gender perspective and a multilevel approach to make visible the existence of a specific pattern of discrimination directed against women journalists through digital or online violence.” [para. 115]
Therefore, the Court reiterated that the Colombian legal system does not expressly regulate whether the National Electoral Council or political parties must act ex officio or at the request of a party in the face of alleged acts of online violence against women. In addition, the Court held that “the legal system does not provide a specific route for cases of online violence regarding the sanctioning powers of the National Electoral Council or the ethics committees of political parties.” [para. 116]
The Court explained that the lack of a specific regulation on this issue inhibits due recognition of the existence of digital violence against women. In contrast to Colombia’s domestic legislation, the Court recalled that there are international human rights standards that require States to ensure that both State agents and private individuals refrain from engaging in any act of discrimination or violence against women, following the United Nations Report of the Special Rapporteur on violence against women, its causes and consequences on online violence against women and girls from a human rights perspective (2018) A/HRC/38/47. Likewise, the Court held that the aforementioned report requires States to prevent digital gender-based violence and to create procedures for the immediate removal of gender-based discriminatory or aggressive content.
Then, the Court explained that the IACHR Rapporteur on Freedom of Expression stated that “the most frequent forms of online violence towards women journalists and media workers include monitoring and stalking, publication of personal data, trolling, smearing, defamation or disqualification, and viral hate.” [para. 121] [Report on Women Journalists and Freedom of Expression, 2018].
Considering this, the Court held that “online violence against women journalists is a reality that is on the rise” and that the petitioners “have received insults, threats, and comments that seek to disqualify their journalistic work or generate viral hatred against them.” [para. 122]
The Court also explained that the mistreatment suffered by the petitioners through insults and expressions is based on “patterns of discrimination that women have historically endured in different spheres.” [para. 124]
The Court then held that these patterns of gender-based discrimination are evidenced by several factors such as the disqualification of “their role as mothers”, by delegitimizing their role as journalists, by preconceived notions about women’s intelligence, by devaluing the fact that they are women, using sexist insults, and through death threats or physical aggressions.
In this context, the Court held that the State cannot tolerate these patterns of online violence against women journalists and concluded that Colombia must adopt the necessary measures to confront this serious phenomenon. The Court recalled that in its judgment T-280/2022, it recognized that in Colombia there is no legislative framework that satisfies the recommendations that the Organization of American States and UN Women have established to combat digital gender-based violence. Likewise, the Court explained that in said judgment, it urged the Colombian Congress to comply with the recommendations made by the Human Rights Council of the United Nations and the Organization of American States to prevent, protect, prohibit, and criminalize digital gender-based violence. Thus, the Court concluded that Colombia still has a normative deficit and a debt with women, to guarantee them a life free of all types of violence, especially regarding online violence.
For the reasons stated above, the Constitutional Court of Colombia partially upheld the lower court’s decision—insofar as it rejected the tutela action after not finding a violation of the rights of the petitioners as a consequence of any action or omission of the National Electoral Council, and the other parties involved; and for having recognized a pattern of online violence against women journalists.
However, the Court revoked the part of the judgment that ordered the “decision [to] be disseminated within political parties and movements, especially the part related to the right to freedom of expression and its limits, and the responsibilities of members of political parties and movements, for the inappropriate use of social networks, when such use leads to the generation of online violence.” [para.129] For the Court, upholding this part of the decision “could entail prior censorship to freedom of expression, which is expressly prohibited by the Constitution.” [para.131]
Finally, the Court ordered several transformative measures to eradicate online gender-based violence. In this regard, the Court urged all political parties and movements to adopt in their codes of ethics guidelines to sanction acts of violence or incitement to violence online following international standards; and to implement a route of access for women victims of any type of violence. At the same time, it reiterated what was ordered in judgment T-280 of 2022: for Congress to comply with international recommendations on the prevention, protection, reparation, prohibition, and criminalization of digital gender-based violence.
Additionally, the Court ordered the ministries of Justice, and Information and Communications Technologies to adopt a bill aimed at regulating digital violence following international human rights standards. The Court requested from the Attorney General’s Office, the Ombudsman’s Office, the Ministry of Justice, the Ministry of Information and Communication Technologies, and the National Electoral Council, to include on their web pages informative content about digital violence against women and, at the same time, to provide protection mechanisms to report any type of violence against women. Finally, it ordered the National Electoral Council to adopt the necessary measures to establish an education and training plan for members and affiliates of political parties and movements on gender perspective and online violence against women; and to submit a bill to regulate a mechanism for channeling complaints about online violence, and to establish a regulatory and internal procedure for the specific processing of such complaints.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Colombian Constitutional Court delved into a pivotal aspect concerning freedom of expression, specifically, digital violence against women journalists. The judicial analysis comprises two central components. The Court held that the petitioners had not adequately proved that they notified the National Electoral Council, political parties, and political movements, about the alleged incidents of digital violence they suffered. However, this aspect of the decision could be disproportionate to the petitioners’ right to freedom of expression as there was no complaint mechanism in Colombia for this type of discrimination on social networks such as Twitter. However, the Court set a landmark precedent in the realm of digital violence, given the evident pattern and context of online violence against women journalists. Notably commendable are the transformative measures ordered by the Court to various Colombian institutions and authorities to prevent, investigate, and sanction online violence against women journalists. The implementation of all these measures is aimed at safeguarding women journalists while simultaneously enhancing a public deliberation environment that is both pluralistic and free from discrimination and violence against women.
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