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New Amicus Brief Defends the Decriminalization in Cases of Defamation

On April 20th, 2023, Robert F Kennedy Human Rights, partnered with Free Press Unlimited, Unión Nacional de Instituciones para el Trabajo de Acción Social (UNITAS), Red Latinoamericana y del Caribe por la Democracia (REDLAD), Kazakhstan International Bureau for Human Rights and Rule of Law (KIBHR) and Odhikar, filed an amicus curiae brief before the Colombian Constitutional Court. The brief argues that, considering international and Inter-American standards on human rights, penal sanctions – particularly prison – are a disproportionate punishment in cases of defamation. This amicus was presented in the context of an unconstitutionality demand filed before the Colombian Constitutional Court by the Colombian organization El Veinte. The petition argued that pieces of articles 220 (slander/injuria) and 221 (false accusation of a crime/calumnia) of the Penal Code (Law No. 599/2000) violated the preamble and articles 20 (freedom of expression), 73 (press freedom and independence) and 93 (on the human rights treaties and covenants ratified by the Congress) of the Colombian Constitution.

The amicus brief submitted by RFK Human Rights and partner organizations highlights the international human rights framework in support of freedom of expression, particularly focusing on its role in rule of law. The key argument relies on the ongoing trend in international courts to decriminalize defamation, observing how imprisonment is a disproportionate punishment in said cases. If a Penal Code allows for this sanction, it enables censorship and persecution of journalists, opposition members and critics in general, causing a chilling effect on freedom of expression, access to information, press freedom, among other rights. It also offers a path for public figures to weaponize the judicial system by suing their critics and victimizing any sort of opposition, in addition to giving space to threats, attacks or smear campaigns.

In reaching its decision in the present case, RFK Human Rights and partner organizations call on the Colombian Constitutional Court to fully comply with international human rights standards that protect freedom of expression, and follow the ongoing trend of decriminalizing defamation by declaring that penal sanctions, especially imprisonment, are a disproportionate form of punishment in cases of defamation. Failing to do so would be a detrimental setback to human rights in the country and the region, compromising rights such as freedom of expression, access to information and press freedom, affecting the rule of law.