Three years ago, a judge ordered the artist Margarita Ariza removing parts of her work ‘Blanco Porcelana’ (White Porcelain) which was exhibited in various public places, as well as in virtual spaces as Facebook and in a website, following a lawsuit for violating the privacy and reputation of some of her relatives.

By Carolina Botero, Fundación Karisma*

The work took the form of a photo album accompanied by the family stories of the artist herself and made reference to an expression of Margarita’s grandmother to define the ideal color of the skin of babies: “white porcelain.” The work, which proposed an interesting reflection on the subtleties of racism, was published in Facebook, in a gallery in Barranquilla, on a transit station of the city, and in a website (www.blancoporcelana.com).

Judging by the comments posted in Facebook and documented as part of the lawsuit, the work was generating the effect the artist wanted: many agreed with everyday parenting practices in a Colombian family —which mark culturally “what is beautiful,” “what is good,” as white skin, straight hair and light eyes—, keeping imperceptible samples of cultural racism. There were also others who did not think alike, especially her uncles and aunts who, after having supported the investigation, sued her for violating their privacy and damaging their reputation. In 2012, Margarita “sheared” the work. Following a court ruling, she took off photos, crossed out texts, and explained this with a message. The process continued.

Over time, ‘Blanco Porcelana’ left the Internet: the Facebook account was no longer public and seemed inactive, and the website showed a notice of redesigning, with no content. Three years later, in May 2015, the work is back on the Internet thanks to a ruling by the Constitutional Court, which states: “the protection of freedom of expression and artistic creation embodied in the ‘Blanco Porcelana’ project requires a limitation of the right to the privacy of the family of the defendant artist; ” as a result, it overturned restrictions on the content of the work and its disclosure. Following the judgment, the artist posted the following message:

With great joy, we welcome the Blanco Porcelana website, which was censored from 2012 up today by two judgements revoked by the Constitutional Court of Colombia in the Case T15/2015, lifting the censorship and giving special protection to the work in a landmark ruling which constitutes a reference for art practices and the defense of freedom of expression of artists.

The case of ‘Blanco Porcelana’ shows the tension existing currently between the rights to privacy and freedom of expression. These rulings are important because they establish guidelines to balance such tension. This time it is recognized that Margarita’s voice is not a whim, or there is no will to offend. This is a valid, documented and necessary art form. The Court concludes that according to major investigations, doctrine, and national and international legal framework, and the jurisprudence in Colombia, racism is a structural problem with strong social ties.

Margarita’s work conveys an opinion through her own experience, using “non-conventional forms of communication” to provoke reflection on an issue that is inscribed in “the collective memory, in the unchallenged uses,” and that takes the form of art expression where subjectivity takes precedent. Thus, it is not required the level of certainty that can be demanded when, for instance, news are being delivered.

To establish that in this case freedom of expression takes precedence over the right to privacy, the Court made an extensive examination that can be summarized as follows:

1. Although there are personal data in the work —names, personal and family situations—, it is not personal or sensitive data that have special protection. For the Court, the story focuses on everyday scenes or episodes, without revealing secrets that can create shame or dishonor.

2. In analyzing the authorization to use such personal data, the Court states that there is no permission. However, the artist’s action does not infringe the right to privacy because the story does not have an offensive spirit nor reveals exclusive or excluding information. In addition, it says, as the work is an autobiographical narrative, it would be a disproportionate and unreasonable restriction on freedom of expression requiring an artist who used this art form as a means of expression asking for permission to all members of the family mentioned in her tale to narrate her own story. The Court says that story belong to all family members, and that personal data relating to the privacy and dignity of everyone are not involved. For the Court, it is on the latter where each one exerts his/her full autonomy.

3. The Court also assesses whether the information was obtained illegally or by means of deception. It concludes that as it is the artist’s own information that she collected and compiled patiently, even with the support of the family, one cannot deduce that we are in front of one of those cases.

4. Finally, the Court examines the disclosure means of the work. It concludes that it is part of it and articulates it.
Privacy is a right protected by the legal framework, but in this particular case the Court gives priority to freedom of expression. This defines an important path for Internet as a means of self-expression, even in conditions where there is no express authorization, provided that the privacy and dignity of others are not infringed. This decision raised the curtain for ‘Blanco Porcelana’ for art and for freedom of expression in Colombia, particularly on the Internet.

However, not all is good news

While writing this lines, the Constitutional Court made public its decision of not examining the process of Gonzalo Hernán López, (reviewed in the newsletter issue no. 14), convicted and sentenced to 18 months in prison on charges of defamation after posting an offensive comment on a local media website.

Emmanuel Vargas, a lawyer for the Foundation for the Freedom of the Press (FLIP, in Spanish), which is supporting this case, wrote an open-ed in the magazine Semana entitled “Constitutional Court prefers censorship,” in which he states that decisions of the Court are becoming more like “a lottery that depends on how each judge sees freedom of expression without consistency with preceding decisions.”

In this case, the Court’s response is an unfortunate precedent for freedom of expression online, and it left open the path to self-censorship and persecution of Internet opinions, clashing with White Porcelain ruling.

*Carolina Botero. Activist and lawyer. Director of the group “Law, Internet and Society” from Karisma Foundation. E-mail: carobotero (at) gmail.com

Translated by Amalia Toledo. Karisma Foundation