Liability regime applicable to bloggers

Through Ruling SC-5238 of 2019, the Civil Chamber of the Supreme Court of Justice, with the report of Justice Luis Armando Tolosa Villabona, referred to the civil liability regime applicable to the operators of blogs, when the comments written in these are "offensive, immoderate, slanderous or libelous".

In these cases, the Court said that a proven fault liability regime applies. Although, in principle, there could not be liability for comments left in a blog, given certain affectation to the honor or honor of a third party it would be necessary to apply the provisions of Article 2341 of the Civil Code, through which it is established:

"Article 2341. Non-contractual liability. The one who has committed a crime or fault, which has caused damage to another, is obliged to compensation, without prejudice to the main penalty imposed by law for the fault or crime committed".

In particular, the Court referred to the possibility of building a regime of "civil liability for proven fault, due to the general principle governing the obligation to repair any conduct that inflicts damage to another", which would apply to platforms such as social networks and blogs.

In order to make a proper analysis of liability in this area, the Court stated that four main aspects must be taken into account: i) the "type of digital platform on which the conduct falls"; ii) the "interests or roles of the actors involved in the Web activity"; iii) the "existing types of control"; and iv) "its modality in relation to the dissemination of the material".

The subject matter of the decision was not properly the issue of liability applicable to blog operators since the operator involved in the lawsuit sub judice was not linked to the process. However, an exhaustive description was made of the details that the Court will have to consider when, in the future, it will have to assess liability in these cases.

This is quite new, especially if one takes into account that the concern about the consequences that may arise from the interaction of users of all kinds, in this type of platforms, has been growing in recent years. This, as politics is increasingly discussed in digital spaces, in a way that is, to say the least, aggressive.

Although this could have the appearance of a violation of the freedom of expression that serves as the basis for democracies such as Colombia's, the Court made it clear that it is not about limiting the possibility of citizens to express themselves in the different spaces in which they participate, but to advocate for an "exercise of freedom, but with responsibility". That is, an exercise that does not result in the affectation of the honor or honor of third parties. Once again, then, the Court leaves the protection of the different fundamental rights at stake in these cases in the hands of the judgment of weighting.

After a judicious study of comparative law in relation to this issue, the Court concluded that, in the scenarios in which a blog is used to make defamatory comments, there will be liability not only of the direct author of such comments, but also of the intermediary or operator of the space on the network. The above, in the event that the operators do not adopt or lack control mechanisms, detection and/or moderation of "comments disseminated by its users through the articles published therein or in the opinion forums, with the potential to harm the integrity of a third party".

This liability, as already noted, is a liability with proven fault, so that the applicable defense is to demonstrate "diligence or care to take protective measures prior or subsequent to the dissemination of content harmful to the honor or honor of the affected party". As part of a diligent act in this sense, it is necessary that the operators of the blogs establish the most appropriate way or system to "identify the damaging party, so that the commentators do not hide in anonymity".

Finally, as an expression of this diligence, the judgment referred to the need for the blog operator to inform its users about the prohibition of making comments that violate the honor or dignity of persons, "so that they can be removed if they occur".