“La presunción de constitucionalidad del discurso ofensivo genérico entre particulares en redes digitales en Colombia”. El tránsito hacia la construcción del ´modus vivendi´ de libertad de expresión
Thesis
The purpose of this research is to establish a critique of the jurisprudential rule established in the SU-420 judgment of 2019 of the Constitutional Court of Colombia. With this unification ruling, offensive speech on social networks in Colombia is clothed with what in the words of the Court is called a presumption of constitutionality, that is, it is granted protection. Its rationale lies in the Court's use of the test of constitutional relevance. This test is a methodology authored by the same corporation, which consists of determining both the impact and relevance of a specific publication of offensive speech between individuals on digital networks, in relation to other constitutional rights violated in the exercise of freedom of expression. Therefore, as will be seen, the use of the constitutional relevance test would demonstrate that the Court is circumscribed to a free market of ideas model. Thus, if we place ourselves in a context of deliberative democracy, the following six research questions are presented: i) Does the jurisprudential rule embodied in Order SU-420 of 2019, which establishes a primacy of freedom of expression in matters of offensive speech in the field of individuals in digital networks, evidence an excess in terms of the autonomy granted to a particular subject? ii) If so, would so much autonomy granted to the individual in the matter of offensive speech detract from the merits of the institutional regulatory need or, on the contrary, would it present such regulation as imperative? Consequently, iii) to what extent would the jurisprudential rule established by the Constitutional Court demonstrate the interest of civil society in order to question the increase of the institutional control of the Colombian State in matters of violent communication and offensive speech in social media? iv) Thus, could a more restrictive regulation be proposed to guarantee the exercise of deliberative democracy through a new rule of formal law of national law, whether statutory law, administrative act or jurisprudential rule? v) Taking into account the harmful nature of offensive speech between individuals, not only from the point of view of the violation of the fundamental rights to honour, privacy and good name suffered by the aggrieved recipient, but also considering that the offensive speech produces unlawful damage capable of giving rise to civil and criminal liability, ¿would it be in the interest of the national legal system to adopt a restrictive proposal of the free market model of ideas of freedom of expresión with the ultimate goal of eliminating the presumption of constitutionality of offensive speech between individuals on digital networks reaffirmed in SU-420 of 2019? iv) Could such a proposal be based on the theories of Balkin and Gray in order to implement a democratic modus vivendi of freedom of expression” that aims to increase the deliberative democratic culture of civil society? The thesis of this research is that there are deficiencies, both in form and substance, in the jurisprudential rule reaffirmed by SU-420 of 2019 that would ratify the free market regime of ideas of freedom of expression in the Colombian legal system and the consequent presumption of constitutionality of offensive speech between individuals on social networks. To this end, we must start from the understanding of a notorious phenomenon in the field of the internet and digital networks, which is violent communication on the internet. Thus, I propose from articles 1494 and 1502 of the Civil Code a sort of theories of the two kinds of discourses that make up this violent communication: On the one hand, generic offensive speech as a unilateral and single-person legal act, and on the other hand, specific hate speech as a crime, the shared element of which is intent as a factor of attribution in generic speech and as a modality of punishable conduct in specific speech. In this way, by explaining the legal nature of the types of discourse that make up the notorious fact of violent communication, and taking into account the supervening effects, hand in hand with the theory of unlawful damage and the general regime of legal liability, It allows us to broaden the spectrum of analysis of the legal effects of violent communication in constitutional, criminal and civil matters. This is useful for analyzing the interpretative criterion used by the Court in SU-420 of 2019, specifically regarding the jurisprudential rule established as a formal rule of law of the presumption of constitutionality of generic offensive speech. In this way, it will be demonstrated that the debate has not been peaceful within the Court in an analysis of previous rulings of the Constitutional Court that came to consider the aforementioned generic offensive speech as unconstitutional, which will allow critically reaffirming the need to protect the fundamental right to human dignity of the violated individual as a matter of fact for the offensive speech between individuals on digital networks, and as a matter of law for the content of the aforementioned order. Thus, the preliminary conclusion of this research is reached, which finds that the free market regime of ideas protects generic offensive speech between individuals in digital networks, understanding it as presumably constitutional. In addition, it is evident that the era of the internet and digital networks have changed the rules of the game of freedom of expression in which this regime was accepted in the twentieth century. That said, it is no less true that the discourses and spaces for debate between users of digital networks have been infinitely multiplied. This becomes relevant to ask the following question: Should the regime of the free market of ideas of freedom of expression be understood as inadequate or useless in the face of the problems experienced by the recipients of violent communication for the effective judicial protection of their fundamental rights to human dignity, honor, privacy and good name? The opinion of this paper is affirmative, as there are other models proposed from the scientific literature that are more in line with the conception of deliberative democracy and in which not only the prejudicial nature of the excessive autonomy granted to individuals is raised, but also the urgent need for state regulation. For this reason, the definitive conclusion of this work presents as a suggestion, that the Colombian State adopt a source of formal law either through a statutory law, administrative act or through jurisprudence, in the latter case, in which case, the Constitutional Court could modify the jurisprudential rule through another unification judgment. A ruling in which the regime of free market ideas and freedom of expression would be abandoned. Noting, once again, that the established jurisprudential rule that currently governs as a precedent in the unification order SU-420 of 2019, establishes the primacy of generic offensive speech over other constitutional rights, which are ultimately threatened or violated through messages containing violence which produce, at the end of the day, an unlawful damage to the aggrieved recipient.
