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Colombia: Amicus Brief in Defamation Case

1 March 2021.

The Centre for Law and Democracy (CLD) has submitted an amicus curiae (friend of the court) brief to the Constitutional Court of Colombia, setting out international standards to support the claim that a civil defamation provision from a 1944 law is unconstitutional.

The provision, Article 55 of Law 29 of 1944, provides for broad civil indemnification for anyone who has been harmed by content distributed by the media unless the responsible media outlet proves that it acted without “culpability”. The CLD brief argues that this fails to respect international guarantees of freedom of expression, which require sufficient defences to be available for a claim of defamation.

We welcome the opportunity to support this important challenge to the civil defamation law rules in Colombia,” said Toby Mendel, CLD’s Executive Director. “It is great to see the focus of defamation challenges in Latin America moving on from the earlier focus on criminal defamation to civil defamation, suggesting that cases may also be moving in that direction.

The latter draws some support from a 9 February annual report by the local press freedom organisation FLIP (Fundación para la Libertad de Prensa or Foundation for Press Freedom). Titled Páginas para la libertad de expresión (Pages for Freedom of Expression), the report notes that there has been an increase in legal cases against the media, with officials preferring this to responding to the substance of media investigations.

CLD’s brief highlights three defences which should be available for any allegation of defamation, namely proof of truth, wide protection for opinions and the defence of reasonable publication, which is made out whenever the person who is responsible for a statement took reasonable care to ensure that it was accurate, even if in fact it contained errors. The brief also argues that third party intermediaries should not normally be responsible for content unless they have been ordered by an independent oversight body, such as a court, to take it down.

CLD’s amicus curiae brief is available here.

El informe de amicus curiae está disponible en español aquí.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431 3688
twitter: @law_democracy

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