A Court Decision that Forces Semana Magazine to Delete Content Constitutes Censorship and Ignores the Fundamental Core of Freedom of Speech

On August 30, Semana Magazine published the court file of Álvaro Uribe in the Semana News section of its digital channel, including the legal interceptions of some family members of witness Juan Guillermo Monsalve. After this publication, Marta Elena Monsalve, sister of the witness, filed a writ request for protection of fundamental rights against the Semana Magazine and journalists Vicky Dávila and Jairo Fidel Lozano. 

The Second Criminal Court of the Circuit of Bogotá, in a judgment of September 28, 2020, notified on October 6, considered that the publication of the recordings of family conversations, that were ordered by the Pre-trial Proceedings Division of the Supreme Court of Justice, which are evidence within that public interest judicial process, affected Marta Elena Monsalve's personal and family privacy rights. Therefore, in the writ for protection of fundamental rights, the judge ordered Semana Magazine and journalists to withdraw the program entitled “Exclusive!  The conversations of Witness Monsalve with his family” from all its platforms.

The Foundation for Press Freedom (FLIP), the Colombian Information Media Association (AMI) and the National Media Association (Asomedios) reject the censorship resulting from the court decision of the Second Criminal Court with a pre-trial proceedings role in Bogotá, and we state the following: 

 

• It is crucial to emphasize that this is the publication of information on a judiciary proceeding of high public interest and national significance, and this is preponderant on the basis of the duty of weighting between the investigation of crimes and the freedom of the press guarantee. The recordings contain information about one of the witnesses against former President Álvaro Uribe Vélez, who appears in the trial against the former president for alleged bribery of witnesses and procedural fraud.
  
  
• The judge ordered the removal of the publication on the grounds that although journalists have the right to report, they could not use evidence of a reserved kind, since "its use is not permitted, less its disclosure in various matters of criminal proceedings". In view of this, we believe that information based on judicial investigations and proceedings is not exclusively used within the proceeding, as it is also an element of judgment for society and the press that can be discussed within the public sphere. It is from this information that a healthy public debate for democracy is generated.
  
  

• We support the point made by the defense of the Semana Magazine, which warned that equating the disclosure of reserved information by a State officer with the publication of information of general interest by a media outlet is a dangerous precedent for press freedom. This creates obstacles to the fulfillment of the role of the media, and blurs its nature, as well as will limit public access to information of national interest.
  
  
• In the ruling, the judge argued that journalists expressed their opinion on what they heard, “by supplanting the judicial work assigned only to judges, even generating a priori value judgments about the conversations heard.” We reject censorship on the part of the judge, who restricts the exercise of journalism, by reproaching communicators to express their opinions in the face of the evidence of the procedure. Judicial activity in the head of judges does not exclude public debate that may be generated in respect of the judicial proceeding and even in respect of judicial activity.
  
  
• The decision to eliminate the content is disproportionate and ignores the fundamental core of freedom of freedom of expression. According to the Inter-American System of Human Rights and the Constitutional Court, if “an abuse” of freedom of speech that causes harm to others’ rights occurs, the least restrictive measures of freedom of speech should be used to remedy the damage. In this regard, the protection measure adopted in the writ for the protection of fundamental rights should be only be oriented to editing the fragments that violate the privacy of the claimant, rather than completely censoring the report. In other words, the removal of the parts in which the claimant was not part of the conversations should have not been ordered.
  
  
• The decision to order to investigate how the media outlet had access to the recordings, and thus, to determine criminal liabilities, is worrying because it does ignore that there are NO prohibited sources in the Colombian constitutional system, and seems to criminalize some. The issuance of court order copies to the media outlet can result in a mechanism for disregarding the reservation of the constitutionally protected news source. In this regard, we call on the judicial authorities to assess and respect the importance of journalists having this guarantee, without which their right to information would be at risk.
  
  
• The unedited disclosure of the telephone interceptions of the Monsalve family, is covered by the protection of press freedom and the constitutional guarantee of independence covered by the editorial line.
  
  

We endorse the decision of the media outlet to comply with the court order and withdraw the program. Overall, however, we will follow up on the development of this writ for the protection of fundamental rights procedure, considering that the court decision taken jeopardizes freedom of the press. 

The interceptions refer to one of the most important judicial cases in the history of the country; for this reason, press freedom must prevail, by materializing the general interest of knowing the truth and making it accessible to society and, thus, to encourage public debate and oversight against public authorities. 

Censoring the press and access to information by citizens, is a serious precedent for freedom of expression interests.