Media Defence has filed an intervention before the Constitutional Court of Colombia in a constitutional challenge to two provisions of the Colombian Penal Code. Under Articles 220 and 221 of the Penal Code, individuals accused of making “dishonourable accusations” can face up to four-and-a-half years in jail. Those accused of libel face up to six years in jail. The constitutionality of these provisions was challenged by Colombian non-governmental organisation El Veinte.
The case raises important questions around the effect that criminal provisions, in particular those imposing custodial sentences, have on the exercise of freedom of expression.
Noting that the Constitutional Court had already decided on the question of proportionality with respect to these laws, the intervention focuses on the chilling effect of those provisions. It argues that criminal provisions on defamation are open for abuse and put journalists at risk of receiving custodial sentences for legitimate reporting on matters of public interest.
The intervention notes that criminal defamation laws are per se in contradiction with international human rights law, and constitute an unjustified interference with freedom of expression. It also emphasises that the prospect of receiving a custodial prison sentence for reporting means journalists often end up self-censoring.
The intervention argues that this chilling effect constitutes a form of prior restraint which is not permissible under the American Convention on Human Rights. Prior restraint amounts to an especially severe limitation of freedom of expression as it curtails speech even before it is placed before the public.
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