Colombia is a civil law based legal jurisdiction with a written constitution based, among other principles on the protection of the right of freedom of expression1 . However, the Colombian Constitution also contemplates the rights of personal integrity, dignity, and privacy of all individuals.2 The tension between these constitutional rights, with the evolution of technology and the development of digital platforms, has given rise to new challenges and legal problems around the world.
It is clear that social media sites and different digital markets have become important venues for users to exercise free speech and their rights of free development of personality and of freedom of expression, among other benefits. However, it is also true that a wide variety of individuals have expressed concern about the content of the information shared through different digital platforms and legal claims have arisen citing concepts of personal privacy e.g., the right to be forgotten.
In May of 2019, the Colombian Constitutional Court3 decided a case of an individual who claimed against the platform's provider for allegedly injurious statements against him. The Court's main conclusions were as follows:
1. The right of freedom of expression is a structural element for democracy, since it acts as a shield that protects the act of communicating and with it, the free exchange of ideas. In Colombia freedom of expression is based on four presumptions: (i) the presumption of coverage of any expression within the scope of constitutional protection; (ii) the presumption of unconstitutionality with respect to any limitation or state regulation regarding this right; (iii) the presumption of the primacy of freedom of expression over other rights, values or constitutional interests with which it may come into conflict; and (iv) the prohibition of censorship.
2. Freedom of expression is applied in the Internet in the same way as it is to other media, concluding that social networks cannot guarantee a place for defamation, denial, rudeness, lack of decorum and disqualification. However, this approach should not lead to the conclusion that the rules applicable to the media should be transplanted to social networks, because as they are different legal realities, regulations must also be different.
3. The platform providers, as intermediaries, are not responsible for content published on their platforms by third parties. Requiring intermediaries to be legally responsible with respect to the content disclosed or created by their users, seriously affects the right to freedom of opinion and expression, as it leads to excessively broad private censorship.
4. It is important to take into account the net neutrality principle is included in the Colombian set of rules in order to allow the Internet to preserve the freedom and openness. Platforms provide open, free spaces that lack prior control of shared content and therefore favor the exchange of ideas, forums and self-expression. The guarantee of net neutrality reinforces the democratic principles of the Internet and freedom of expression as a universal guarantee.
5. Freedom of opinion is not an absolute right and both jurisprudence and current regulations have recognized its limitations. The first restriction is based on international human rights treaties that prohibit opinions that contain hatred, incitement to war, direct and public incitement to commit genocide, and those that infringe the absolute prohibition of promoting child pornography. There is also a limitation that applies to the opinion columns that contain concrete facts, because the truthfulness is required.
In the context of digital platforms, as well as in other scenarios, the analysis for determining the prevalence of one right or another is done on a case by case basis. The right of freedom of expression could be limited by other rights depending on the content of the information that is shared and also taking into consideration if the content could be considered an opinion (even if it is factually incorrect. What is not under discussion is that are not the platform's providers the ones in charge of carrying out this case by case analysis since they are only intermediaries and, therefore, they are not the ones responsible for the content.
Digital platforms have become fundamental to communication and expression. Therefore, it is very important to carefully assess what regulations are necessary including the appropriate corporate governance model (e.g., industry appointed or statutory regulator) to cover all the challenges faced by digital platforms in this complex area. Ideally any new laws would avoid imposing very high compliance costs on platforms or unnecessary regulations that discourage innovation.