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FREE SPEECH AND PRIVACY WHICH COMES FIRST?

What happens if the two colliding rights are of a constitutional nature? For example, if a person who exercises the profession of journalism, protected by his right to free expression, decides to report on the private life of a person, who, like every human being, has the constitutional guarantee of privacy, which must be safeguarded by the state.
The Colombian legal system has a large number of rules that integrate different types of rights and obligations, all within a scale of priority according to the general interest, i.e., some with greater relevance than others, however, all valid.
In this set of norms, there is a subgroup of guidelines with a broader and deeper meaning than the others, which denote the direction and purpose of the state; this subgroup can be known in various ways, but perhaps the best known is as constitutional or fundamental rights. For this reason, since they are considered a special category of norms that make up a legal system, when there is a norm of lower hierarchy that contravenes them, the constitutional norms will always be applicable.
But what happens if the two colliding rights are of a constitutional nature? For example, if a person who exercises the profession of journalism, protected by his right to free expression, decides to report on the private life of a person, who, like every human being, has the constitutional guarantee of privacy, which must be safeguarded by the state.
As we can see, both persons are constitutionally protected, that is, by norms of equal hierarchy but which apparently contradict each other; to understand how to solve this collision, we must know the scope of each of the constitutional principles involved in the normative conflict:
The right to free expression is the guarantee that every person has the right to express his or her opinion, and to
express
y
disseminate
opinion, to inform, to receive truthful and impartial information, and to establish mass media. In accordance with Article 20 of the Colombian Political Charter.
This definition allows us to deduce that within the framework of the Colombian legal system, we have the possibility of expressing our opinions and thoughts regarding the situation our country is going through, trends that are taking place, social crises that are becoming evident and even matters as personal and varied as tastes, preferences or inclinations.
On the other hand, the right to privacy becomes the protection of personal and family intimacy and a good name, establishing actions for the knowledge, modification and updating of information about any person in any type of database. In addition, this principle includes the protection of personal information by the prerogatives just mentioned and the protection of private correspondence and the stipulation of non-intrusion except by court order or in the cases provided for by law.
As we can observe, both principles protect spheres inherent to the human condition of persons, so we cannot hastily assert that one is more important than the other, since these norms do not indicate a specific compliance, but rather that their compliance must be understood to the greatest extent possible, according to the specific case and its legal and factual possibilities.
In order to determine in a specific case, how compliance with these constitutional norms should be applied, we must apply a technique developed by legal doctrine and used by judges; this exercise is called weighting, a valuable tool that indicates that the greater the degree of non satisfaction or affectation of one of the principles, the greater must be the importance of satisfying the other, and if this represents sufficient justification for the restriction of the affected principle, all this in the specific case being evaluated.
With respect to the above case, we can indicate that, for there to be a serious violation of the right to privacy and for this to be valid, it will be necessary that it is generated from a high degree of satisfaction of the principle of free expression and that the latter serves as justification for the restriction of the former, always understanding that this analysis can only be carried out in the specific circumstances and conditions of each collision, which is why there will be scenarios in which the principle to be restricted is another.
Thus, we indicate once again that the application of this type of rules requires an arduous study and preparation on the part of the justice provider, who must make the decision of which principle to use, always taking into account the specific case, its specific circumstances and the rules of application that during the last decades have been developed by brilliant legal doctrinarians.
 
Prepared by Katherine Álvarez Gil
Edited by Santiago Pinzon Sosa

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