Colombian man condemned to 18 months of jail time for an online comment

In an unprecedented ruling, Gonzalo Lopez was sentenced to 18 months imprisonment and a fine of 9.5 million pesos (approximately $5000 USD) for making a comment in the online edition of the local newspaper El Pais Cali. The comment went something like this:

“With such a rat like Escalante, even Club Colombia and Comfenalco fired her for misconduct… What can you expect? A thief catching thieves? Bah!”

He was referring to Gloria Lucia Escalante, former Administrative and Human Resources manager of the local utility company. Escalante then sued the anonymous commenter for libel, but the municipal court did not concede her point since there was no way to identify the anonymous commenter. Yet Escalante later provided electronic tracking evidence that pointed to Gonzalo Lopez, plus some other testimonies. Cali’s High Court ruled against the defendant.

The law states that:

Article 220. Libel. The other person that makes dishonorable accusations shall be liable to imprisonment of one (1) to three (3) years and a fine of ten (10) to one thousand (1,000) minimum monthly wages.

Other cases due to online comments

The online publication Pulzo (in Spanish) does a good recap of recent cases around the world in which people were arrested for online comments with different levels of severity. Many have been for direct threats, but more than one has been for “distasteful” opinions. The most recent example of this happened in the UK when a teacher was stabbed to death by a student. Twenty-one-year-old Jake Newsome posted on his Facebook page:

“Personally I’m glad that teacher got stabbed up, feel sorry for the kid… he shoulda pissed on her too”. He got six weeks of prison time.

This is going even further than the Lopez case, given that there was no libel and no physical threat whatsoever; the police arrested and charged Newsome under the 2003 Communications Act with having sent “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing nature”. Various human rights and free speech organizations, including Index on Censorship, have voiced their concerns over these types of arrests based on outdated laws. Yet at what point does offensive become “grossly offensive” is entirely subjective. Maybe it had to do with the fact that it got shared 2000 times.

The Streissand Effect

The “Streisand effect” is the phenomenon whereby an attempt to hide, remove, or censor a piece of juicy information has the unintended consequence of publicizing it more. The term was coined after what happened when Barbara Streisand sued a tabloid for libel. We can only wonder how much of a Streisand effect the Lopez comment had once he had been sued for it. Escalante is now known at a national level for sending a man to jail for calling her a thief on a news site comments section.

Colombia’s Supreme Court rejected Lopez’s appeal; they sought to set precedent with the case, stating that even though it was a comment, it had extensive reach in social media at “very high levels”, injuring the image and reputation of the plaintiff. Yet of course, it reached those levels because of the suit itself. Lopez originally argued that the comment had only been read and acknowledged by Escalante, but after a prolonged legal battle, the comment became well known throughout the web and traditional media.

Is it right to jail someone for commenting on a news site or a social media site?

There are various issues to consider. First is whether a comment can be considered an accusation, or by default, an opinion. If this ruling had happened earlier in the year, quite a few politicians could have been put in jail for the amount of libellous tweets made during the June presidential election.

Another point is the legitimacy and enforceability of libel law in informal, commenting online spaces. It seems unrealistic to apply the same level of severity from traditional media to the individual comment. What is particularly interesting though, is that in Colombia, libel is considered a criminal and not a civil offense. Giving a year and a half of jail time for such a thing is likely to bring strong repercussions from civil society and freedom of speech activists. If he had said: “my opinion is that she mismanaged money” instead of calling her a thief, would the suit have been dismissed?

We can also not disregard the “tracking” that was done by a private lawyer and not law enforcement to find out his identity. That is an entirely separate Pandora’s box.

In conclusion, if Lopez had said this comment in a bar and someone called the police, they would have disregarded it and told them to go away. There must be some debate in regards to what makes a comment worthy of prosecution. Should libel, harassment, threats, false alarms and disrespectful comments be placed in the same echelon? It is also unrealistic to expect the general public to be as versed on the subject as the lawyers hired by newspapers.

Some could make a case that arrests of people who pirated music did not dissuade the great majority of people from continuing to do so, therefore this could have no effect whatsoever on free speech in Colombia. It does nonetheless bring into discussion the magnitude of the penalty for those who end up prosecuted. Online participation in forums and comments on traditional media sites are already unusually low in the country, and particularly filled with offensiveness and personal attacks. But now, instead of going through the hassle of trying to technically make their comment an “opinion”, Colombians may abstain from commenting at all.

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