On April 27, 2021, the Constitutional Court issued judgment number STE 109 of 2021, whereby it reviewed tutela rulings issued in response to an action filed by a WebCam model for the alleged violation of fundamental rights to work, minimum subsistence, reinforced labor stability, health, and social security.
At the time of filing said action, the Webcam model stated that she was linked to the studio through an indefinite-term employment contract and that she was pregnant. Upon notifying the studio of her pregnancy, the studio told her not to return, stating that "she had been fired." In the action, she sought reinstatement, payment of owed biweekly wages, and payment of contributions to comprehensive social security. The studio, for its part, stated that she was linked through a commercial contract called a joint venture contract and an agency contract, acting as an intermediary between the model and the digital platforms or the Webcam system, "seeking the proper development of the commercial act," providing the necessary elements for its execution.
The Court posed the legal issue as "determining whether the fundamental rights to work, minimum subsistence, reinforced stability, health, and social security were violated by terminating the contract between the plaintiff and the defendant while she was pregnant," for which it proceeded to verify the admissibility of the tutela action, a requirement in all such actions, examine the sex industry and human rights, and concluded with the basis, content, and scope of maternity protection and reinforced labor stability for pregnant women.
In approaching the sex industry and human rights, the Court also studied the history of the protection of fundamental rights, especially of women, and made a historical recognition of the feminist movement and its branches, as well as their positions regarding the sex industry, specifically concerning pornography, and its normative and regulatory scope. It established that Webcam modeling is a recent part of the sex industry, without constituting pornography or prostitution.
In this context, the Court evaluated the impact on the rights to health, liberty, and work arising from the activities inherent to the execution of sexcam or webcam work, where, for the Court, it is not tangible to determine such impact, given that it requires an audience, acceptance, and demands from that audience to obtain profitability and/or earnings for the model. The Court emphasized the following:
The foregoing is an illustrative exposition that only hints at the complex and multidimensional nature in which women's human rights are violated, especially those of the most vulnerable who, by force of circumstances, are compelled to seek a means of subsistence in the sex industry, particularly now that the digital age makes access to that industry easier and simpler in practices such as webcam modeling.
Now, in this judgment, the Court is clear in determining that there is no specific regulation in the Colombian legal system governing the occupation of webcam model, which is lawful in its execution, and highlights that the only regulations on such practice are found in the Tax Statute, granting them the status of withholding agents, as well as land use and premises conditions.
When beginning the analysis of the specific case, the Court established: "it is necessary to verify in each specific case whether, based on the manner in which the activity is carried out in practice, it is possible to find the elements that characterize an employment relationship," elements which, for all cases, are (i) the provision of services, (ii) subordination, and (iii) remuneration. It then proceeded with a subjective and an objective component.
In the subjective component, it framed the model in a condition of special vulnerability, since at the time of the events, various situations converged that placed her in a special condition of vulnerability, such as: being a woman, a mother heading a household, being pregnant, living in poverty, and "dedicated to an occupation that, being immersed in the sex industry, is susceptible to discrimination and stigmatization."
As for the objective component, it was subdivided into two stages: (i) the existence of a contractual link and (ii) whether it meets the conditions for the application of maternity protection. Regarding the first stage, the elements that constitute a de facto employment contract were reviewed.
Regarding the personal provision of services, the defendant acknowledged a contractual link in which performance could only be carried out by the model and not by another person she designated, a condition that was set forth in the clauses of the existing contract, a situation that, for the Court, evidenced the provision of personal services.
In the analysis of subordination, although the clauses of the agency and joint venture contracts were examined, where conditions of use and payment of invoiced amounts were clearly established, the Court highlighted the reduction in the percentage recognized by the manager in the invoicing when the model broadcasts less than 15 days, going from 60% to 50% of the percentage invoiced by the model. The execution of the contract clauses was also analyzed, and the Court found situations of special relevance to the case. One of these was the obligation of the models of the defendant studio to record their entries and exits from the facilities, with penalties for non-attendance. The second point the Court highlighted was the inconsistency between the hiring conditions and the contract, since the defendant provided a joint venture contract, that is, one of a purely commercial and civil nature, and consequently, a commercial relationship between equals (horizontal and symmetrical), a situation that was not demonstrated, especially since, when examining the documents comprising said contract, it is evident that the commercial activity declared by the Webcam model in the Single Tax Registry does not show a relationship with the purpose of the joint venture contract signed with the defendant, which was the exercise as a Webcam model, this being also the model's contribution to the business.
Regarding the third point highlighted by the Court, it was the existence of supervision and control over the execution of the work, with compliance with a strict schedule and the possibility of imposing sanctions, along with technical powers in favor of the studio, a situation that, for the Court, evidences a condition of authority of the defendant and not, as stated, a relationship of equals between merchants.
In the analysis of remuneration, the Court noted that, despite setting a percentage as economic recognition, such modality is not exclusive of the salary nature of the earnings received. Thus, for the Court, the three elements of the employment contract were configured, which were decisive in the outcome of the judgment, since this also led the Court to determine the configuration of maternity protection. Consequently, the Court declared the existence of an employment contract between the plaintiff and the defendant, and also ordered the payment of unpaid wages, social security contributions, and compensation equivalent to 60 days of work salary, in addition to legal compensation. Regarding the request for reinstatement, the Court refrained from ordering it, considering it an axiological and prescriptive contradiction of the Constitution and of the study conducted to determine the outcome of said action.
In addition to said mandate, the Court ordered the Municipal Ombudsman to provide accompaniment to the model until her rights were restored. It also ordered the Ministry of Labor to initiate an administrative investigation against the studio, adopting necessary and pertinent measures to safeguard the rights of women working as Webcam models. It urged Congress and the Ministry of Labor to regulate the activity of Webcam modeling in accordance with the guidelines of the judgment.
It should be noted that this tutela ruling has exclusive scope for the parties involved, the Webcam model and the studio, meaning that not all commercial relationships established between Webcam models and studios under joint venture and agency contracts are immersed in or lead to the configuration of an employment contract. However, said judgment does leave the door open for such relationships to be subject to study in the labor jurisdiction, also creating a milestone for the extension of maternity protections to contractual links that may not be considered labor. What the judgment does leave is the review of the execution of contracts in the field.