Colombia’s Constitutional Court overturns the blocking by a government agency against a journalist on X

This article was kindly written for Media Defence by Laura Urrego, Project Coordinator at El Veinte. 

On 16 August 2023, journalist José Manuel Vega de la Cruz noticed that he had been blocked by the X account (formerly Twitter) of the Governor’s office of Cesar’s region in Colombia. Questioned by the Foundation for Press Freedom (FLIP), the Governor’s office explained that the measure was taken due to the journalist’s critical editorial views.

In response to this, the journalist, counseled by El Veinte, initiated a constitutional action requesting a declaration of  the violation of his rights to freedom of expression and access to public information, as well as an order against the Governor’s office  to unblock him on X. Although both lower court rulings rejected the claim, the case was later reviewed by the Constitutional Court of Colombia, which overturned the blocking and the lower courts’ decisions.

Judgment T 475 of 2024 of Colombia’s Constitutional Court declared a violation of the rights to freedom of expression and access to information of journalist José Manuel Vega de la Cruz. The violation arose from the blocking of his account on X by the official account of the Governor’s office, a public entity. The ruling is favourable in recognising the violation of the plaintiff’s rights, affirming the suitability of tutela (constitutional action) as a protection mechanism, and establishing that the blocking in this case constituted a form of censorship.

This is a favorable decision for the journalist and sets a positive precedent for the exercise of freedom of expression and access to information, while also presenting social media as a public forum relevant to democratic debate. In addition, these are some key takeaways of the judgment:

The establishment of criteria to establish which cases of blocking could be permissible

The Court considered that, although not applicable in this case, the purpose of a public body in creating a social media account could be to enable one-way communication. In such cases, the public body might limit interactions from other users.The Court’s reasoning aligns with a stance from case law developed at U.S. Courts providing that social media platforms could be viewed as designated public forums subject to limitations or lack thereof.

Additionally, the Court argued that excluding posts or participants could serve a legitimate purpose or reflect neutral criteria regarding expressions. Such exclusions would be permissible as long as they adhere to abstract and neutral criteria established beforehand through the account or community rules. However, this could undermine the principle of legal specificity required for restrictions on freedom of expression. Furthermore, the Court suggested that participation by “anonymous accounts, chatbots, trolls, and other practices, such as sharing unrelated opinions” may be limited.

Finally, among the criteria established, the Court indicated that public entities could create community or account rules that outline a process where rule violations may result in blocking. This would serve to “ensure the proper functioning of the channel, fulfill the purposes for which it was created, and prevent abuse,” which the Court deemed “a reasonable limitation on freedom of expression.”

Assessing the risks to public debate on the internet

The Court noted that social media maximizes freedom of expression without sufficient counterbalances, which can lead to significant challenges, such as potential violations of privacy, honor, reputation, and good name. It stated: “The risk of public debate being affected by practices carried out on social media under the supposed protection of freedom of expression is exacerbated.”

In this context, the Court identified practices that could harm public debate, including: cyber troops, targeted attacks against public officials or opinion leaders, government-sponsored accounts or websites, fake accounts and computational propaganda. The Court classified these as “harmful practices that significantly affect democracy, public debate, and individual rights related to honor, privacy, and good name.” It emphasized “the need to impose limits on freedom of expression in the context of social media, considering that this is not a barrier to democracy but a mechanism for its protection.”

While it is acknowledged that these practices can have significant and concerning impacts on democracy by distorting information and creating echo chambers, it is considered troubling that the established criteria may also encompass legitimate expressions of freedom of expression, such as dissenting or critical voices. This raises the risk that the Court’s decision could be used by public officials and entities as a pretext to disproportionately restrict public debate under the guise of defending democracy. This is considered especially concerning in a context like Colombia’s, marked by polarisation and stigmatisation.

Media Defence’s Intervention

Media Defence filed a third-party Intervention in this case to highlight the disproportionate nature of the block, which not only restricted access to a single post but prevents all future interactions with the official account, impacting journalistic activity and the public’s right to know. The governance of social media by public entities should respect international and domestic standards on freedom of expression and access to public information.

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