The exercise of the freedom of expression, information and opinion of journalists guarantees the possibility of publishing information on acts of possible corruption, without the corresponding disciplinary or criminal proceedings having been concluded, provided that they comply with the requirements of veracity and impartiality, as well as the to comment on such facts.
This was ruled by the Constitutional Court, which warned that there is a violation of the freedom of expression, information and opinion of journalists who are declared civilly responsible for making public information about a complaint of possible acts of corruption committed by a public official when disciplinary or criminal proceedings are pending, provided they have complied with the veracity and impartiality charges inherent to journalistic activity.
“This, even, even if the public official is declared innocent after carrying out the judicial processes,” he added.
The Constitutional Court emphasized that this type of convictions for civil liability for acts of journalists must be assessed with special care, especially when it comes to opinions regarding such facts duly verified according to journalistic sources.
This conclusion was reached by the Second Chamber of Review when studying the guardianship presented by the journalist Vicky Dávila and the communication medium Radio Cadena Nacional (RCN) against the ruling handed down by the Superior Court of Bogotá that declared them civilly responsible for the publication of a news item on the radio station La FM in May 2014.
Said news referred to an alleged act of corruption that involved the then commander of the Casanare Police Department, Colonel Jorge Hilario Estupiñán Carvajal, in the framework of a contracting process for the acquisition of accommodation and campaign equipment.
According to the Superior Court of Bogotá, the interview that was carried out with the uniformed officer regarding the complaint was intended to harm him because he was prejudged and accused of conduct for which he was later declared innocent.
With a presentation by magistrate Jorge Enrique Ibáñez Najar, the Chamber determined that in a civil liability process, the analysis of the judicial authority requires distinguishing whether the journalist is exercising freedom of information or opinion, in order to establish what the charges were and corresponding obligations, as well as assessing the type of facts on which the news or opinion falls.
With regard to the exercise of freedom of information, the same standard cannot be demanded of an investigation carried out by a journalist and that carried out within the framework of a disciplinary or criminal process, especially when it comes to complaints about possible acts of corruption that result from a clear general interest.
“Because at that time the administrative and judicial procedures regarding the complaint had not yet been carried out, the sources that were available did not allow journalists to have more contextual information under a reasonable standard. Under this scenario, it was the colonel who had the burden of giving the corresponding explanation,” the sentence indicated.
Therefore, the fact that in the disciplinary and criminal proceedings that were subsequently carried out the colonel was declared not guilty, are not reasons that detract from the legitimacy of the journalist to broadcast the news. Above all, because the facts denounced were verified and contrasted with the sources that, in the state of the investigation, could elucidate what happened.
“As specified by the Foundation for the Freedom of the Press, the approach that journalists make to the truth cannot be confused with the judicial truth, to the extent that the complaint about alleged criminal acts cannot be based on the certainty about what happened,” the Court pointed out.
Regarding freedom of opinion, the Second Chamber of Review warned that the evaluation of the opinions formulated by journalists in radio programs has a wide margin of protection, and it is the affected person who must prove that the opinion was based on false facts.
Finally, the Court pointed out that the Court under appeal made statements that would rather be aimed at carrying out a type of control over an adequate way of practicing journalism, ignoring that the information issued and the opinion formulated were based on different tools that guaranteed the constitutional requirements. .
The ruling annulled the sentence demanded by the Superior Court of Bogotá and granted it 20 days to issue a replacement order based on the constitutional framework described by the Court on the guarantee of freedom of expression, information and press within the framework of non-contractual civil liability processes for acts of journalists.