The Constitutional Court has on multiple occasions established and emphasized that the freedom of expression on social media is not unlimited; the rights to honor, good name, and personal privacy must always be respected.
Since the well-known ruling T-50 of 2016, “limits to free expression on social media,” in which the Court reviewed a case of violation of good name, privacy, and honor on the social network Facebook between a creditor and a debtor. In the case, a woman requested a loan of 3 million pesos from another, which, as of the date of the tutela action, was still owed. Due to the debtor's default, the creditor decided to expose the debtor's non-compliance, so on December 12, 2014, she published the following on her Facebook wall along with a photo of the aforementioned:
“More than three years ago I lent (Lucía) some money. To this day she has not deigned to pay me back, she deletes my messages, does not answer my cell phone, avoids me at every turn. I was obliged to put her on this medium so that she would be a bit more considerate and pay me. Let her know that I lent her the money, I did not give it to her…”
Upon seeing the publication made by Esther, Lucía decided to file a tutela action, considering that her conduct violated her rights to good name, honor, and privacy on the social network. To which the Court established that:
1. Because the publication was on a social network with such social impact as Facebook, Lucía is in a state of defenselessness, and the tutela action against private individuals is admissible.
2. Although the right to free expression cannot be curtailed, when a conflict arises between the right to freedom of expression and the fundamental rights to privacy, honor, and good name, it must be presumed, by virtue of what has been established in jurisprudence, that the former, as a general rule, should prevail.
Therefore, the Constitutional Court orders Esther that, within three (3) days following notification of this ruling, she publish on the wall of her Facebook profile the corresponding apology for the harm caused, addressed to Lucía, which publication must be enabled for the same number of people who had access to the first message at the time and for the duration that the latter remained published, that is, two months and 8 days. Unless, within the three (3) days following notification of this ruling, the plaintiff indicates that she waives the publication.
But the matter does not end there, because apparently the message was not clear, and more situations like the one presented above have been occurring, situations in which people believe that freedom of expression on social media is unlimited; what they do not know is that, according to the Constitutional Court, the limits of freedom of information apply to private individuals.
In a more recent case known through ruling T-695 of 2017, a citizen filed a tutela action against a councilman of Medellín.
In 2011, the plaintiff and her spouse were subjected to criminal proceedings in the United States, since he practiced medicine without a license and after performing a non-surgical aesthetic procedure on a patient, she presented a complication and died.
In 2016, the Comptroller General of Antioquia, Sergio Zuluaga Peña, hired her services as a lawyer; however, the mandates were revoked after, in some sessions of the Medellín City Council, a councilman disclosed information about her private life and made false statements related to the facts of the criminal proceedings to which she had been linked, stating that: “she is a lawyer of dubious reputation, who since her arrival in the country has dedicated herself to bad medical practices in garage clinics in the City of Medellín, that she and her husband were convicted in the United States for the crime of homicide after performing plastic surgery on a woman and she died after being abandoned on the street, and that they took advantage of the parole granted to them to return to Colombia and evade the justice of that country,” also referring to the services she provided as a lawyer to Mr. Zuluaga Peña, from which he asserted that he would have compensated her fees with contracts in the Office of the Comptroller General of Antioquia, both for her and for her, and even would have benefited her by appointing one of her daughters. He also published the false information from his Twitter account @BernardoAGuerra, website www.bernardoguerrahoyos.com, and replicated the information through various media outlets.
Therefore, the citizen filed a tutela action, which reached the Constitutional Court, and it resolved to grant the requested protection and order Mr. Bernardo Alejandro Guerra Hoyos, Councilman of Medellín, Antioquia, within forty-eight (48) hours following notification of this decision: remove from his website www.bernardoguerrahoyos.com and his Twitter account @BernardoAGuerra the press release published on November 30, 2016, containing the information that transgressed the fundamental guarantees of Mrs. Carmen Olfidia Torres Sánchez and Marilsa Torres Sánchez, and rectify in a statement at a plenary session of the Municipal Council of Medellín, Antioquia, on his official website www.bernardoguerrahoyos.com, his Twitter account @BernardoAGuerra, and in a media outlet with wide national circulation.
Since the Chamber reiterates that the privileged place occupied by freedom of expression in the Colombian constitutional order, which even confers a presumption in its favor, does not allow this right to be exercised in an unrestricted, negligent, and disrespectful manner of the fundamental rights to good name, privacy, and honor of others.