From freedom of expression to the “right to insult” in digital social networks?

By Nelson Remolina Angarita (19/I/2017)

** Text translated from Spanish to English by Luisa Ricaurte Espinosa, GECTI.

I recently heard a radio interview in which one person stated the following: “I have the right to insult and you have the right to insult me. But you don’t have the right to threaten me”. She reclaimed the right to insult by reiterating that “we have the right to insult each other” (…) “I am reclaiming the right to insult… because if not then you are simply denying freedom of expression”. The full interview can be heard here

To insult means: “1. v.tr. To offend someone by provoking and irritating him/her with words or actions; 2. v.tr. Obsolete. Said of an illness: Attack, charge.” (Taken from the Dictionary of the Spanish Language of the Royal Spanish Academy). So, do we have the right to offend others? Is aggravating people a purpose of freedom of expression? Is it legitimate to insult others because the constitution guarantees the right to the free development of personality?

Colombia is a Social State of Law based, among others, on respect for human dignity (article 1 of the Constitution). We have the “right to the free development of personality with no more limitation than those imposed by the rights of others and the legal order” (Article 16 of the Constitution). We hold many rights, but we must also fulfill several citizen duties. In this sense, article 95 of the Constitution states that “it is the duty of the person and the citizen: 1. To respect the rights of others and not to abuse their own;“. Taking this into account, the following question arises: when we insult another person, are we respecting the human dignity of the recipient of our verbal or written attacks?

Is the right to insult a way of abusing the law? According with the jurisprudential guidelines of the Constitutional Court on the abuse of the law  (sentence C-258 of 2013), it is relevant to ask the following question: is insulting another person a purpose wanted by our Constitution and laws? Is insulting another a situation of disproportionate, inappropriate or unreasonable use of our rights?

From the perspective of freedom of expression, there is national and foreign jurisprudence that not only does not recognize the right to insult but limits that freedom when insults are used. All of the above does not mean that it is forbidden to criticize or express our disagreement. However, care must be taken with the terms we use to communicate our ideas because they may be injurious, disproportionate, demeaning, humiliating, mocking, ignominious, infamous, disrespectful and, in general, unsuitable to refer to a person whose human dignity we are obliged to respect, even if we do not agree with it.

In Spain, for example, the right to insult has been denied and limits have been set on how we express ideas or opinions. In a judgment of September 2015, the Supreme Court stated that “although freedom of expression has a very broad scope of action, including even the most annoying, hurtful or unhappy criticism, in its communication or externalization it is not possible to surpass the intention of criticism, giving it an injurious, demeaning or disproportionate nuance, because if this is the case, protection of the right to honor must prevail. This is how the Constitutional Court’s repeated doctrine must be understood, which states that the Constitution <<does not recognize an alleged right to insult>> (SSTC 216/2013, 77/2009, 56/2008, 9/2007 and 176/2006, among many others).” [Spain. Supreme Court. Civil Room. Judgment No. 497 of 09/15/2015. Judge: Francisco Marín Castán]

In June of 2016, the already mentioned Supreme Court did not endorse the use of terms “completely unnecessary for political criticism” and stated that journalists and publishing companies “do not enjoy a right to insult, humiliate and mock, even if the recipient of the insult holds a public office and insults are made on occasion of controversies of a political nature. People who hold public office have to endure criticism of their actions, even the most harassing and hurtful, but they do not have to endure being mocked and humiliated by insults, all the more so when they are repeated over for an extended period of time“. [Spain. Supreme Court. Civil Room. Judgment No. 417 of 06/20/2016. Judge: Rafael Saraza Jimena]

In Colombia, the Constitutional Court ruled a case of a university student who was expelled from the University for publishing on Facebook expressions such as: “If I finally graduate I do not know if I will shake hands with Hans or spit on his face? (…) If they call me from the University to tell me again that I lack something to graduate, that son of a bitch of the academic director will hear me!!!”

The Court went on to establish whether “the Rosario University violated the rights to due process, the free development of the personality, to express and spread the student’s own thoughts and work (…), by opening a disciplinary process that concluded with the penalty of expulsion, as a result of his conduct, to include in the social network Facebook denunciations against the Rector and the Academic Secretary of the Faculty of Political Science and International Relations of the University”. [Republic of Colombia. Constitutional Court. Sentence T-550 of 12/07/2012. Judge: Nilson Pinilla Pinilla]

The Court considered relevant to clarify certain questions on “Freedom of expression and dissemination of thought in social networks.” The court stated that “social networks cannot guarantee a place for defamation, insult, rudeness, lack of decorum and disqualification. Certainly, no basis derives from article 20 of the Constitution, nor from international norms, nor from any precept, that validates the disclosure of insults, expletives, obloquies or lies by any kind of media.” [Republic of Colombia. Constitutional Court. Sentence T-550 of 12/07/2012. Judge: Nilson Pinilla Pinilla]

In response to the student’s request, the Court concluded as follows: “(vi) With regard to the freedom of expression invoked, with what was said through the Internet, Mr. (…) was outside the scope of protection of the right established, within other provisions, in the article 20 of the Constitution, because of the ostensibly disrespectful and unjust way he externalized his feelings about the University that had trained him and against the academic authorities that fulfilled their duties. He could well express objections and criticisms, if there was reason to do so, but without incurring in an illegitimate disdain, much less by using rude terms, in alleged violation of human dignity.”

Notwithstanding the analysis of the particularities of each case and with the purpose that each reader draws their own conclusions, we allow transcribing some parts of the sentence and the sources used by the Constitutional Court:

• “Freedom of expression is the guarantee that allows people to freely express their thoughts and opinions (article 20 of the Constitution), with respect for the legal order, peaceful coexistence and the rights of others, who insulting expressions or unreasonably disproportionate expressions should not be directed to“.  (Cf. C-442 of May 25, 2011, M.P. Humberto Antonio Sierra Porto.)

•  ”The Inter-American Court of Human Rights has pointed out that the scope of protection of freedom of expression does not imply that there is no limit to whoever communicates by means of a mass media, so that in exercising that freedom “should not be used insulting phrases, or insidious insinuations and vexations” (IACHR, Kimel vs. Argentina case, May 2, 2008, paragraph 13.)

•  “The European Court of Human Rights has not gone so far as to ensure the dissemination of all kinds of opinions or occurrences, inasmuch as the proper and objective exercise of freedom of expression presupposes that “value judgments are protected by article 10 (CEDH), but the insults, that are a totally different issue, do not.” (JIMÉNEZ ULLOA, Adriana Consuelo. La libertad de expresión en la jurisprudencia de la Corte Interamericana y del Tribunal Europeo de Derechos Humanos. Publicaciones Universidad Externado de Colombia, Bogotá, 2010.)

•  “The Spanish Constitutional Court has understood that the right to honor operates as an unavoidable limit to the freedom of expression, prohibited as it is that someone refers to a person in an insulting way, or unjustifiably attacking his reputation, demeriting it before the opinion of others . That is why freedom of expression does not cover the “formally insulting and unnecessary expressions for the message to be divulged, in which its issuer simply externalizes his personal contempt or animosity towards the offended.” However, the court clarified that “the annoying or hurtful nature of an opinion or information, or a critical evaluation of a person’s personal or professional conduct or judgment about his or her professional suitability, does not constitute an illegitimate interference in his right to honor, as long as, of course, what was said, written or disclosed are not insulting messages or expressions, insidious allegations or vexations that objectively provoke the discredit of the person to whom they refer ” (Judgment 49/2001 (February 26), Second Room of the Spanish Constitutional Court.)

•  “The Colombian Constitutional Court has maintained that the opinion spread by media can affect the fundamental rights to good name, privacy or others, when they present “levels of insult or, in the case of expressions aimed at specific people, are absolutely disproportionate to the facts, behavior or actions that support the opinion, so that, more than generating a debate, they demonstrate the clear intention to offend without any reason or a spirit of persecution devoid of all reasonableness” (T-213 March 8, 2004, MP Eduardo Montealegre Lynett)

Finally, this issue not only involves the person who insults or the affected but the means used to materialize the insult. This will be a topic to analyze in another opportunity, but I think it is appropriate to keep in mind the reflections of the Argentine professor Oscar Pucinelli, who in one of his articles highlights certain regulatory, jurisprudential and doctrinal aspects of the European and North American scope on responsibility for offensive publications on the Internet from journalists and bloggers. See: Puccinelli, Oscar (2016). La responsabilidad de los proveedores de servicios y de los usuarios de internet por publicaciones ofensivas: un breve muestrario de jurisprudencial. Publicado en la Revista científica sobre cyberlaw de CIJIC.

** This text only reflects the author’s opinion