Freedom of Expression
Press Release R334/21
The Office of the Special Rapporteur considers incompatible with inter-American standards the law approved by the Colombian Congress that punishes libel and slander against public officials
December 10, 2021
Washington D.C. - The Office of the Special Rapporteur for Freedom of Expression (SRFOE) of the Inter-American Commission on Human Rights (IACHR) expresses serious concern regarding the approval by the Colombian House of Representatives of an article that seeks to punish libel and slander against public officials and former public officials. SRFOE warns that the law is incompatible with international obligations on freedom of expression, assembly and association, and calls on the State to review and adapt the law in accordance with Inter-American standards.
According to the information received, on December 6, the Colombian House of Representatives approved in plenary session Article 221A of Bill "whereby measures are adopted in the area of transparency, prevention and fight against corruption and other provisions are enacted". The article establishes that those "legal representatives or members of any community organization" who slander or libel a public official or former public official may be sanctioned with the suspension or cancellation of the legal status of the community organization to which they belong by court order.
The Office of the Special Rapporteur considers that the article in question represents a regressive and restrictive norm for the exercise of fundamental freedoms in Colombia and contravenes international standards by imposing disproportionate and unnecessary sanctions against specially protected expressions. As the IACHR and the Inter-American Court have repeatedly held, public officials or candidates for public office are exposed to a greater degree of public criticism due to the public interest nature of the activities they perform and because they have voluntarily exposed themselves to more demanding scrutiny. This does not imply, the Court noted, that they cannot be judicially protected in terms of their honor; however, they may be protected in a manner consistent with the principles of democratic pluralism and weighing the interest of such protection against the interests of open and uninhibited debate on public affairs. In this regard, the Commission and the Court have insisted that the use of criminal mechanisms to punish speech on matters of public interest, especially in relation to public officials, is incompatible with inter-American standards.
This Office also considers it appropriate to recall that the prevalence of human rights in a democratic State is largely based on the respect and freedom afforded to journalists, the media and human rights defenders in their work. In this regard, the Court has referred to the duty of States to create the legal and formal conditions, but also to guarantee the factual conditions, in which they can carry out their functions freely and safely.
On the other hand, the Office of the Special Rapporteur notes that, despite the fact that the aforementioned article is part of a project that seeks to prevent and combat acts of corruption and promote transparency, the regulatory proposal could have the opposite effect, as it discourages public denunciations of corruption or illegal acts committed by persons exercising public functions, thus deepening the opacity of the State. Along these lines, the IACHR report on Corruption and Human Rights recognized that the crimes of defamation, libel, slander and contempt have been the most widely used in the region to prosecute journalists and public whistleblowers who investigate acts of corruption; and stressed that the use of criminal law in these cases generates an effect of self-censorship and silences the dissemination of ideas and information of public interest.
The Rapporteur’s Office regrets that the Colombian Congress failed to take into consideration the solid Inter-American standards that were set forth during the legislative discussion, and the expeditious context of approving an article that could have a significant impact on the exercise of the right to freedom of expression, assembly, and association in Colombia. However, as this Office was able to record, the Transparency Secretariat of the Presidency warned that the article in question was not part of and did not reflect the spirit of the bill initially submitted to the Senate, while noting that its objective is to provide citizens with the necessary guarantees to report acts of corruption.
The Office of the Special Rapporteur regrets that the Colombian Congress failed to take into consideration the solid inter-American standards that were set forth during the legislative discussion, and the expeditious context of approving an article that could have a significant impact on the exercise of the right to freedom of expression, assembly, and association in Colombia. In documenting this worrisome situation, the Special Rapporteurship appreciates the messages from public authorities objecting to the article because of the threat it could pose to the exercise of fundamental freedoms. However, this Office makes a call for urgent reflection and hopes that these pronouncements are consistent in the process that the norm follows in the bodies available to the rule of law, on the understanding that all the steps that follow this parliamentary approval, beginning with conciliation, constitute important steps towards bringing legislation into line with international human rights obligations.
***Update from the Special Rapporteur for Freedom of Expression.
On December 17, 2021, the Office of the Special Rapporteur for Freedom of Expression of the IACHR was informed by the State of Colombia that the conciliators of the Bill to which this communication refers had not reached an agreement on Articles 65 of the Senate and 68 of the House of Representatives regarding the texts approved in the Plenary, for which reason it was requested to delete them. The Rapporteur appreciates the fact that this office's request was taken into consideration and welcomes the fact that at the stage of conciliation of texts, the regressive article for freedom of expression has been excluded from the final text.
The Office of the Special Rapporteur for Freedom of Expression is an office created by the Inter-American Commission on Human Rights (IACHR) to encourage the hemispheric defense of the right to freedom of thought and expression, considering its fundamental role in the consolidation and development of the democratic system.