Colombia

LGBT rights, freedom of expression, hate speech and privacy: The case of Sergio Urrego

“My sexuality is not a sin; it is my own paradise” - Anonymous phrase used by Sergio Urrego

Introduction: It started with a kiss

A 16-year-old boy – Sergio Urrego – was found dead on the streets of Bogota after committing suicide by jumping from the rooftop of a mall. Sadly, a teenage suicide in this world is not something out of the ordinary. Nonetheless, his death received the attention of Colombian media and society.

The suicide happened after a friend took a picture of him and his boyfriend Horacio kissing, and a school teacher witnessed it. Sergio was forced to declare he was not heterosexual, 1 and that he had a romantic relationship with a classmate. Later the teacher, together with the school therapist and the school director, started to systematically harass Sergio. They considered Sergio's homosexuality sick behaviour that deserved to be punished and corrected.

Colombia is one of the countries with the most internet users in Latin America 2 and one of the most active in social media in the world, occupying 14th position in the world ranking of Facebook users. It has 17 million Facebook users, 3 and six million Twitter users. 4 Consequently, Colombian politics, news and public debate make significant use of social media.

During the series of events that surrounded Sergio’s death, online social media from both sides came out in favour and against lesbian, gay, bisexual and transgender (LGBT) rights. There were thousands of tweets with the hashtag "Sergio Urrego", some of them including homophobic expressions like “All queers should do the same as Sergio, kill themselves.” Activists meanwhile tweeted Sergio's favourite quote, “My sexuality is not a sin, it is my own paradise.” They also created the trending hashtag#yotambienfuisergio(“I was also Sergio”) to express how others had also suffered discrimination because of their sexual orientation.

These exchanges on online social platforms are a reflection of LGBT struggles against discrimination offline. Here it is worth posing the following questions: Is the internet a medium that can be used to strengthen LGBT rights? Or, conversely, has it become a place were discriminatory practices are reinforced? The internet is a space where people may speak their mind freely; but how far can freedom of expression go when it attacks groups or individuals that have been systematically discriminated against (like LGBT people)? Furthermore, before committing suicide, Sergio used social media to express the possibility of killing himself. He even published posts on Ask.fm 5 where he expressed the possibility of committing suicide. Again, what are the limits of freedom of expression online? If someone shares his or her intention to commit suicide online, should anyone intervene?

Currently Sergio's case is under criminal review.6 The regional education agency7 took action against the school based on Sergio’s mother's motion that her son was persecuted and harassed without legal grounds. At the end of August 2015, the Constitutional Court issued ruling T-478/158 where it was decided, among other things, whether or not Sergio’s right to privacy and good name were violated by his school.

LGBT rights: Policy and political background

Historically LGBT groups have been discriminated against by different actors: civil society, the government, the Catholic Church9 and even violent right-wing political groups. Among other reasons for this discrimination is the fact that a representative part of the population is conservative and is heavily influenced by the Catholic Church – which openly opposes the LGBT community. 10 It is no surprise then that earlier this year, when a national survey asked whether Colombians supported or were against same-sex marriage, 62% of the survey respondents said they were against it. 11

Sometimes this conservatism is violent. Anti-LGBT pamphlets have been distributed in the streets and online by so-called “social cleansing groups” associated with violent and extreme right-wing politics, and operating in poorer neighbourhoods of cities. 12 In these pamphlets LGBT people are told to leave the neighbourhood or change their behaviour, or they will be attacked or murdered. According to the country's leading LGBT rights NGO, Colombia Diversa, in 2012 there were 87 deaths directly attributed to sexual orientation and associated with the social cleansing groups 13 (this data was collected directly through field work because there is no governmental agency that gathers it).

In the government, some prominent public servants have openly accepted they are homophobic, 14 while others have used covert strategies to discriminate against LGBT persons. 15 According to Colombia Diversa's latest report, policemen have intentionally attacked LGBT groups without any legal justification. 16

On the other hand, a more progressive part of the population has grown in number and voice over the last 15 years. For example, some top-tier politicians who are in same-sex relationships have publicly declared their sexual orientation. 17 These public declarations have provoked responses on social media both against and supporting them.

From a legal perspective, the Colombian Constitutional Court has protected same-sex relationships through its rulings: same-sex couples have the right to a pension plan 18 and to register their partners as family members to access health services.19 The court has defended the right to express affection publicly to someone of the same sex as part of the individual freedom that every Colombian has. 20 Nonetheless, same-sex couples are not able to get married or adopt children if neither of the couple is their biological parent. 21 In 2011 the Law Against Discrimination 22 was enacted. It holds that a person who commits or fosters acts that discriminate against another person because of their sexual orientation – among other forms of discrimination – can be jailed for up to 36 months.

While some legislation entitles LGBT persons to certain rights, and despite the constitutional rulings, there is still no full recognition of LGBT rights. This, coupled with open and implicit homophobic practices by the government, has created a policy vacuum when it comes to the full realisation of sexual orientation as a right.

The legal framework regarding privacy

Under the Colombian legal system, privacy as a fundamental right is protected in the constitution 23 and in case law.The Constitutional Court has defined privacy as: “The sphere that belongs exclusively to the individual, related to his or her private possessions, of his or her owns tastes and behaviour that are truly personal and that the individual is not willing to exhibit publicly and where there are no legal grounds for external interference.” 24

The Constitutional Court has divided the right to privacy into three levels. The first is personal information (also known as personal data) such as contact information, religious and political beliefs, and sexual and medical information. 25 The second level relies on the private communication that people exchange with others (also known as the inviolability of private communications), 26 and the third level is linked to the interaction between the private and public sphere, where people have the right to keep personal information private that they do not want to share with others. The right related to this level involves the right to a good name 27 and honour. The court has also stated that there are three ways to breach an individual's privacy. 28 The first one is to monitor, surveil or intercept the individual’s information and/or communications. The second is to reveal or publish the information that a person has gathered without the authorisation of the person who owns the private data. The third kind of breach happens when such information is altered or misused to humiliate the person and hurt the person's reputation or good name. 29

The Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights has said that offensive speech – speech that is disturbing to a group of people – is allowed and is in line with the right of freedom of expression, as long as that speech does not promote potential violence against a specific group or individuals. 30 According to the Special Rapporteur, in unacceptable hate speech the threat cannot be abstract, it needs to be specific and it needs to be almost certain that the violent act against the victim will occur.

Unlike many other Latin American countries, Colombia does not have a specific hate speech law. The Law Against Discrimination mentions hate speech, but only indirectly, by criminalising “any harassment that fosters acts of discrimination”. Last year, a proposal to prohibit hate speech was shelved. 31 Therefore freedom of expression including offensive speech is protected in Colombia, but hate speech is not allowed, even though the country lacks a specific law that punishes it directly.

When privacy does not matter

To understand the implications of having one's privacy violated, we need to return to our story of Sergio. Sergio and Horacio were boyfriends. One day they kissed at school and a friend took a picture. A teacher witnessed the act and took Sergio’s friend's phone without her permission. The teacher forced Sergio's friend to erase the picture, 32 and reported the incident to the school director and the school psychologist. Afterwards, the three of them were called to a meeting where Sergio and Horacio were told: (i) they could not be together anymore, and (ii) they had to confess their sexual orientation to their parents. After their parents found out about the relationship, Sergio's mother supported him. As an act of reprisal against this support, the school director temporarily suspended Sergio from school and forced him to speak to a psychologist. Meanwhile, Horacio's parents removed him from the school and started legal proceedings against Sergio, claiming he had sexually harassed their son. 33 Sergio was served papers by the attorney general to stand trial for sexual harassment. Four days later he killed himself.

When Sergio’s teacher took his friend's phone without her permission and looked at her photos, he clearly breached both Sergio’s and his friend's right to privacy at a first level. The Constitutional Court, analysing Sergio’s case, concluded that his right to intimacy at the first level was intentionally disrespected by the school staff after they started a disciplinary process 34 against Sergio, accusing him of excessive public affection based on evidence that was clearly private (the photo). 35

Sergio left a goodbye letter to his mother, and this letter was published on the internet by the media without her authorisation, 36 breaching her right to private communications and disrespecting Sergio's memory and privacy. When Horacio's parents used the couple's conversations as evidence they violated Sergio’s right to private communications. When the director along with other school personnel publicly condemned Sergio and Horacio's relationship, telling other students that it was something “sick” and punishable, they violated Sergio’s right to a good name.

The Constitutional Court ruling held that after Sergio’s death and the subsequent public debate, the school staff gathered all personal and private information about Sergio from his social media profiles – including his sexual orientation and political beliefs – in order to construct a narrative of him as an outcast and insane, justifying his decision to end his life. The court concluded that the school had no right to share Sergio's private information publicly. It said the school also did not have the right to disrespect Sergio’s good name. 37

Finally, one's sexual orientation is private data. In Colombia, it is considered “sensitive data” and in fact requires higher levels of protection than other private data. Access to the details of a person's sexual orientation must be restricted at the highest level. 38 “Coming out” as LGBT is a private process that should be respected, even more so when homophobia is still rampant in society. For all these reasons it is clear that Sergio's privacy was violated at all levels.

The LGBT community and cyberspace

Like any teenagers, young LGBT people are particularly vulnerable to other people's opinions. Because of the taboo associated with homosexuality, LGBT teenagers tend to be even more vulnerable than most. 39 In this regard, the internet is not a safe space. A study found that LGBT youth are nearly three times as likely as non-LGBT youth to say they had been bullied or harassed online (42% vs. 15%) .40 In fact, the Constitutional Court noted in Sergio's ruling that school bullying was systematic in Colombian educational institutions, and was creating stress among students of diverse sexual orientations.

On the other hand, the internet is a space that fosters freedom of expression because it allows its users anonymity. Sergio expressed his emotions and opinions regarding his sexual orientation online, 41 because he felt safe in that space where there would not be any judgement. 42 Many teenagers like Sergio start to explore their sexuality and sexual orientation on the internet, on social networks, public forums, and through online searches for information. In this context, the web becomes a public space that offers privacy through the use of nicknames, anonymous blog posts, and private chats for those who are not ready to come out or are in the process of doing so. 43

The internet helps groups traditionally discriminated against to speak up and use their voices to defend their rights. According to the latest GenderIT.org survey, 98% of respondents pointed out that the internet was a crucial tool for LGBT activism. 44 After Sergio died, many bullied LGBT teenagers tweeted #yotambienfuisergio (I was also Sergio) to say that they had been discriminated against and persecuted. While it allows anonymity, the internet has also helped to empower the young LGBT population to speak openly and assertively, and even to come out. For example, Juan Pablo Jaramillo, the most followed YouTuber in Colombia, who has nearly three million followers, came out through a YouTube video. 45 Since then even more people have started to follow him on YouTube.

As suggested, the internet is also a space for haters. Sergio – during his life and after his suicide – was harshly criticised for his homosexuality. Are those online homophobic expressions considered hate speech in Colombia? Yes, when they deliberately hurt and discriminate against a person and are likely to lead to an act of violence against them. However, as explained, offensive speech is protected by the right to freedom of expression. In this sense, it is legal to aggressively criticise LGBT people and to bully them online when the opinion expressed does not nurture violence that can become real. Thus the line between hate speech and offensive speech is blurred.

Should the intention to commit suicide online be taken seriously? Should the government intervene? As mentioned, Sergio published his intention to kill himself on Ask.fm 46 and it passed without notice. There is no current literature or legislation on the matter; for now, Facebook and other internet-related companies are offering services to assist people who are feeling suicidal. 47

LGBT teenagers are especially vulnerable to online and offline bullying as well as hate speech once they have come out or been forced to come out. Expressions of this vulnerability by LGBT teenagers can be seen on social networks. There is a strong tendency for these teenagers to develop depression. 48 Because of this it is necessary to pay special attention to teenagers when they express suicidal thoughts online.

Sergio's story spread throughout Latin America and the world, 49 and in a few months became a symbol of the battle against discrimination in educational institutions. 50 The story shows that there is a lack of specific public policies and laws to protect the LGBT community, although partial protection is offered by the rulings of the Constitutional Court and the Law Against Discrimination. 51 The Colombian government and society should take immediate action to correct this and to prevent the repetition of a similar tragedy.

For now, discrimination can be fought in the classroom. A study by the Colombian sexual health governmental agency showed that when people under 25 years old are educated about diverse sexual orientations, 60% of them support the rights of same-sex couples. 52

Action steps

The following advocacy steps can be suggested for Colombia:

• Design public policies that raise awareness about online bullying and monitor the online bullying of LGBT people, especially teenagers who are the most vulnerable group. This includes developing school-level programmes on human rights and sexual orientation.
• Educate teachers about sexual diversity and sexual rights, as well as their obligation to protect a minor who reveals his or her sexual orientation and becomes vulnerable to bullying and hate speech.
• Monitor schools closely regarding actions taken against LGBT students, and ensure that their right to privacy is respected. Sexual orientation is part of the private sphere and this should be respected if the student does not want to reveal it.
• Take measures against schools whenever they persecute a minor because of their sexual orientation.
• Launch campaigns to raise awareness about the Law Against Discrimination. Such campaigns should speak out against discrimination, but without compromising freedom of expression. They should teach people about the difference between offensive speech and hate speech, and call on people to report discrimination when it is encountered.
• Start a public debate on the issue of freedom of expression and the legal obligation to protect life when someone expresses suicidal thoughts on the internet. What counts as a private expression online, and when is intervention necessary?
• Internet service providers (ISPs) should actively promote the use of their services as being free from discrimination. They should not monitor the content of their users, unless there is a legal basis to do so, but they can promote campaigns in which they invite users to use their services in a positive way and which show the consequences of discrimination. They can also set up call centres for counselling assistance to address online bullying or hate speech. ISPs should be fast enough to take down content that amounts to hate speech based on a court order, but should always give notice to the owners of the content. Only a judge should decide whether the content is discriminatory or not.

References

1 On social media Sergio presented himself not as homosexual, but as a person who did not care about the gender of the person he liked. Roldan, S. (2014, 31 October). Los Gritos de Sergio Urrego. Las Dos Orillas. www.las2orillas.co/los-gritos-de-sergio-urrego

2 www.internetlivestats.com/internet-users-by-country

3 www.internetworldstats.com/south.htm

4 www.mintic.gov.co/portal/604/w3-article-2713.html

5 Hask.fm/SergioDavidRiot/answer/53056573013#_=_

ask.fm/SergioDavidRiot

6 The General Prosecutor has accused the school director of discrimination and of altering legal evidence. www.elespectador.com/noticias/bogota/sergio-urrego-tambien-denunciaron-falsamente-fiscalia-articulo-560879

7 Noticias RCN. (2015, 26 March). La Secretaría de Educación diseñó un plan correctivo que el colegio debe cumplir en un plazo de seis meses. RCN. www.noticiasrcn.com/nacional-justicia/secretaria-educacion-cundinamarca-suspendio-y-multo-al-colegio-sergio-urrego

8www.corteconstitucional.gov.co/?bMD

9 Vida/Iglesia. (2015, 17 February). 'Corte no puede experimentar con el bienestar de los niños': Iglesia. El Tiempo www.eltiempo.com/estilo-de-vida/gente/iglesia-rechaza-adopcion-de-parejas-del-mismo-sexo/15263097

10 The Colombian Catholic Church was predominant in education and significantly influenced government policies related to sexual education until the 1990s when the state was able to secularise the sector in 1993. Guerrero, P.G. (1998). Pasado, presente y futuro de la educación sexual en Colombia. Rev. Col. Psiquiatría, Vol. XXVII, No. 4, 303-314. psiquiatria.org.co/web/wp-content/uploads/2012/04/VOL-27/4/Pasado,%20presente%20y%20futuro%20de%20la%20educaci%C3%B3n%20sexual%20en%20Colombia.pdf

11 Sección Política. (2015, 4 March). Mayoría de colombianos se opone a matrimonio gay: encuesta. El Tiempo. www.eltiempo.com/politica/segun-encuesta-de-gallu-colombianos-se-oponen-a-matrimonio-gay/15340079

12 Comisión Colombiana de Juristas. (2008). La expresión de la violencia política y social a través de panfletos paramilitares. Boletín n. º 37: Serie sobre los derechos de las víctimas y la aplicación de la ley 975. Unión Europea. www.coljuristas.org/documentos/boletines/bol_n37_975.pdf

13 Sánchez, M., Lleras, C., & González, M. (2012). Cuando el prejuicio mata. Informe de derechos humanos de lesbianas, gay, bisexuales y personas trans en Colombia. Colombia Diversa. colombiadiversa.org/colombiadiversa/documentos/informes-dh/colombia-diversa-informe-dh-2012.pdf

14 Senator Gerlein from the Conservative Party in a Congress session stated: “Sex between men... deserves repulsion.” www.elespectador.com/noticias/politica/homofobica-intervencion-de-gerlein-articulo-388192 Public Prosecutor Alejandro Ordoñez has also openly opposed the recognition of LGBT rights. sinetiquetas.org/2014/12/08/colombia-el-procurador-y-su-cruzada-homofobica

15 A Bogota councilman demanded a list of LGBT employees at a government TV channel. www.semana.com/nacion/articulo/tras-pedir-lista-lgbti-canal-capital-concejal-ramirez-dice-amarlos/267170-3

16 Sánchez, M., Lleras, C., & González, M. (2012). Op.cit.

17 Sección Nación. (2014, August 28). Debemos ser juzgadas sólo por nuestro trabajo. Revista Semana. www.semana.com/nacion/articulo/cecilia-alvarez-su-pareja-gina-parody-piden-respeto/400696-3

18 Ruling C-336/08, Constitutional Court. www.corteconstitucional.gov.co/relatoria/2008/c-336-08.htm

19 Ruling C-811/07, Constitutional Court.

20 Ruling T-909/11, Constitutional Court .

21 Ruling C-071/15, Constitutional Court.

22 wsp.presidencia.gov.co/Normativa/Leyes/Documents/ley148230112011.pdf

23 The Colombian constitution protects the right to privacy in the following way in its Article 15: Every individual has the right to personal and family privacy and to his/her good reputation, and the state will respect these rights... and ensure they are respected. Correspondence and other forms of private communication are inviolable.

24 Ruling T-552/97, Constitutional Court; Ruling T-916/08, Constitutional Court.

25 Ruling T-748/11, Constitutional Court.

26 Ruling T-916/08, Constitutional Court.

27 Ibid.

28 Ruling C-787/04, Constitutional Court.

29 Ruling T-405/07, Constitutional Court.

30 Botero, C. (2009). Marco Jurídico Interamericano del derecha a la libertad de expresión. Relatora Especial para la Libertad de Expresión. Comisión Interamericana de Derechos Humanos. Organización de Estados Americanos. www.oas.org/es/cidh/expresion/docs/cd/sistema_interamericano_de_derechos_humanos/index_MJIAS.html

31 www.elespectador.com/noticias/politica/maria-fernanda-cabal-pidio-hundir-proyecto-de-ley-prohi-articulo-519701

32 Interview with Viviana Bohórquez, Colombia Diversa lawyer, 13 July 2015.

33 www.las2orillas.co/recogiendo-los-pasos-de-sergio

34 In Colombia, schools are allowed to begin a disciplinary process involving a student when they do not comply with the school rules.

35 Ruling T-478 /15, Constitutional Court. www.corteconstitucional.gov.co/?bMD

36 Interview with Viviana Bohórquez, Colombia Diversa lawyer, 13 July 2015.

37 Ruling T-478 /15. Constitutional Court. www.corteconstitucional.gov.co/?bMD

38 Ruling C-748/11. Constitutional Court.

39 According to the Gay, Lesbian & Straight Education Network, youth who experienced both online/text and in-person bullying and harassment reported lower grade point averages (GPAs), lower self-esteem, and higher levels of depression than youth who were bullied only in person or online/text, or not at all.

40 GLSEN, CiPHR, & CCRC. (2013). Out online: The experiences of lesbian, gay, bisexual and transgender youth on the Internet. New York: GLSEN. www.glsen.org/press/study-finds-lgbt-youth-face-greater-harassment-online

41 ask.fm/SergioDavidRiot

42 www.las2orillas.co/los-gritos-de-sergio-urrego/

43 Ruszczynska, A. (2007). Living ‘la vida’ Internet: Some Notes on the Cyberization of Polish LGBT Community. www.mirovni-institut.si/data/tinymce/Publikacije/beyond%20the%20pink%20curtain/07%20-%20Gruszczynska.pdf

44 Shaikh, R. (2015, 15 September). How crucial is anonymity for sexual exploration and promoting sexual rights activism? GenderIT. www.genderit.org/feminist-talk/how-crucial-anonymity-sexual-exploration-and-promoting-sexual-rights-activism

45 https://www.youtube.com/watch?v=tspE2pYA264

46 ask.fm/SergioDavidRiot/answer/53056573013#_=_ and ask.fm/SergioDavidRiot

47 www.facebook.com/help/594991777257121/

48 GLSEN, CiPHR, & CCRC. (2013). Op.Cit.

49 Sergio's case was written up for Wikipedia just two months after his death. www.elespectador.com/noticias/bogota/sergio-urrego-tambien-denunciaron-falsamente-fiscalia-articulo-560879

50 Interview with Viviana Bohórquez, Colombia Diversa lawyer, 13 July 2015.

51 School regulations are intended to protect students independently of their sexual orientation, but in Sergio's case these were not applied.

52 www.profamilia.org.co/images/stories/afiches/encuestas-investigaciones/bitacora.pdf