In Colombia, it is common for fundamental rights to overlap or even come into conflict. Imagine this case: a journalist, protected by their right to freedom of expression, decides to publish information about a person’s private life. However, that person also has a constitutional right to privacy, which the State must protect.
The Colombian legal system recognizes that all rights are important, but it establishes a hierarchy based on the general interest. In other words, although all rights are valid, in certain circumstances some may carry more weight than others, depending on the context and the social impact they generate.
Within the Colombian legal system there is a special group of rules with a deeper and more far-reaching meaning: constitutional or fundamental rights. These rights set the direction and purpose of the State and, by their superior nature, always prevail over lower-ranking rules when there are contradictions.
But what happens when the two rights in conflict are of equal constitutional rank?
For example, let us consider a journalist who, protected by their right to freedom of expression, publishes information about another person’s private life. That person, in turn, has the constitutional right to privacy, which must also be protected by the State.
In this case, both rights have the same hierarchy, but they seem to contradict each other. So, how is this type of conflict resolved?
To understand it, we must first know the scope of each principle.
Right to freedom of expression
The right to freedom of expression, enshrined in Article 20 of the Political Constitution of Colombia, guarantees that every person may express and disseminate their thoughts and opinions, inform and receive truthful and impartial information, as well as establish mass media outlets.
This definition allows us to understand that, within the Colombian legal framework, every person is free to express their opinions and thoughts on the issues they consider relevant: from the country’s political situation and social or economic trends, to more personal aspects such as tastes, preferences, or inclinations.
Right to privacy
For its part, the right to privacy protects personal and family intimacy and one’s good name. In addition, it grants each individual the possibility of knowing, modifying, and updating the information stored about them in any database. This principle also guarantees the protection of personal data and private correspondence, prohibiting any intrusion without a court order or without the exceptions expressly established by law.
As we can see, both principles—freedom of expression and privacy—protect essential aspects of human life, so it cannot be categorically stated that one is more important than the other. In reality, their application must be interpreted by seeking the greatest possible balance according to the circumstances of the case and the possibilities provided by the law.
To determine how to apply these rights when they come into conflict, the law uses a tool known as “balancing”. This technique, used by judges, consists of assessing which of the rights carries greater weight or relevance in the specific situation. In other words, the greater the impact on one of the principles, the greater the justification must be to support the application of the other.
In the example given, an infringement of the right to privacy will only be valid if it responds to a high degree of satisfaction of the right to freedom of expression, and if this justification is proportional to the harm caused. However, this analysis will always depend on the particularities of each case; there will be situations where the balance tips the other way and it is freedom of expression that must be limited.
In conclusion, the application of these principles requires careful, technical, and balanced analysis by judges, who must decide which right prevails without losing sight of the context, the facts, and the constitutional values that underpin the Colombian legal order.
