The case presents an unflattering scenario for defending freedom of expression in Colombia’s digital environment. Freedom of expression is not only access to information; it is also the possibility of disseminating and freely expressing our views.

By Carolina Botero, Karisma.

Recently, in Colombia, we knew about a sentence to an Internet user to 18 months in prison and 9.5 million pesos (approximately USD 4.500) for insulting a civil servant in a comment on the online edition of the daily El País in Cali. The Supreme Court of Justice dismissed the Internet user defense’s arguments in an appeal.

On November 28, 2008, El País published a piece of news entitled “Detentions continue over scholarship cartel in Emcali.” Under the pseudonym “Con Memoria” (“With Memory”), Gonzalo López commented the news by writing: “And with such a rat as Escalante is that she was fired from Club Colombia and Comfenalco by mismanagement, what can you expect… thief catching thieves? Bah!” The comment referred to Gloria Lucia Escalante, who was working as an administrative and human resources manager at Emcali (Cali city-owned company).

At first instance, the tenth municipal criminal court acquitted López, stating that the prosecution had not successfully identified the accused as the author, in any case what he would have committed was an error by repeating what was said publicly. On appeal, the Superior Court of Cali reversed the acquittal and sentenced him for libel. And, as noted, the Supreme Court subsequently dismissed the appeal.

The case presents an unflattering scenario for defending freedom of expression in Colombia’s digital environment. Freedom of expression is not only access to information; it is also the possibility of disseminating and freely expressing our views. Therefore, it is key to citizen participation, accountability and democracy. It is no limitless; not all speeches are protected as they may violate other rights. However, the analysis must consider that the coercive power of the criminal law is a threat to the free flow of ideas. The criminal law power must be applied in exceptional circumstances, in extreme cases and not simply to silence inconvenient voices. In his 2011 report on Freedom of Expression to the UN, the Special Rapporteur Frank La Rue said, “the right to freedom of expression includes the views and opinions that offend, shock or disturb.” In fact, the Colombian Constitutional Court distinguishes between information and opinion, accepting a lax criterion for the latter. So, offensive or shocking expressions are acceptable, especially when it comes to questioning government officials, as said by the director of the Foundation for Press Freedom (FLIP) to the media about this case.

Many in Colombia have considered that the decision is correct, as responsibility of what one says should be extended to the Internet. However, this ignores that standards of freedom of expression are also extensive to the web, i.e., the tension remains and the analysis must be done in each case. The special rapporteurs on freedom of expression of the United Nations, the Organization of American States (OAS), the Organization for Security and Cooperation in Europe and the African Commission on Human and Peoples stressed that: “Freedom of expression applies to the Internet, as it does to all means of communication.” Consequently, it is not just about making an example of the commentator, but reviewing the overall context to analyze its impact on the right to freedom of expression as well.
In addition, although it was not discussed and has gone largely unnoticed in the media, the case weakens significantly the Colombians’ rights to express themselves anonymously. Such disproportionate penalty is unaware and tacitly endorses statements such as those said by Luis Guillermo Restrepo, director of the daily El País, who voiced to the media that there is no anonymity on the web and that this case represents abuse resulting from using pseudonym to attack in forums designed to generate opinion. Strengthening these imaginary has a collateral consequence: weakening of safeguard existing for those in vulnerable position. Ignoring the need to maintain and defend anonymity spaces is forgetting that “the protection of anonymous speech is conducive to individuals in public debate since –by not revealing their identity– they can avoid being subject to unfair retaliation for the exercise of a fundamental right,” as affirmed by the Special OAS Special Rapporteur for Freedom of Expression, Catalina Botero.

No doubt, there is a widespread malaise in Colombian society to the excesses of open online forums, which are frequently space for insults. But this very fact makes that society itself does not give credibility to these spaces. Today, no one believes that what there is said is more than general opinions, perhaps they serve to gauge public opinion, they are considered vent spaces or, simply, as Carlos Cortés described, “public toilet walls.”

The great sin of the Court’s ruling is that stays in outrage at one of the many online offenses; it did not attempt an analysis in the light of the standards of freedom of expression that would force it to consider that, in cases like this, we find ourselves in the presence of a citizen opinion on a civil servant, which deserves a special forbearance. It ignored that it is worse for democracy that these spaces do not exist, which in any case are undoubtedly public spaces. The Court imposed an excessive penalty for limiting a citizen opinion which is neither informative nor is crucial to influence the public debate, or neither severely injure the right of another person. The Supreme Court did not take the opportunity to make an urgent analysis on how to apply the existing legal principles to a special and necessary territory, such as the Internet, for the exercise of rights.

What worries of this case is that it opens a dangerous door in Colombia to pursue uncomfortable or critical statements or value judgments. The fact that the Internet is a mass medium, in which we say and find all, should be no incentive to design or implement laws that restrict the right to freedom of expression. This case presents us with the looming threat of self-censorship for fear of criminal retaliation, hurting the free flow of ideas and opinions, and constraining the public, pluralistic and participatory debate.

But, in addition, the Colombian case is especially exaggerated when compared with the sentence issued almost simultaneously in Costa Rica, in which a user was acquitted for criticizing President Chinchilla on social media. The Costa Rican judge in that case stated, “the tolerance threshold to be expected by the individual who holds the Presidency of the Republic is very high.” Perhaps the remedy is not criminal punishment, but digital literacy. By now, others claim that if the same standard is applied, many are lining up to go to jail (especially well-known politicians that do not skimp on insults on their social media).

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*Director of the group “Rights, Internet and Society” from Karisma Foundation.
Translate by Amalia Toledo.