It is no secret that technological advances and new communication systems have generated both positive and negative aspects in society. One of the phenomena that has emerged as a result of these advances is the so-called "sexting" , which involves the diffusion of intimate images shared between individuals within private conversations. In response to this, various articles have been published to provide guidance on what to do if a personal intimate image is circulated through online platforms. These articles typically advise individuals to first file a complaint with the Attorney General's Office. Following that, they recommend requesting the platforms (such as Facebook, Instagram, among others) to take down the image. If the platforms do not comply with the request, the next step is to appeal to the Superintendence of Industry and Commerce. As a last resort, filing a writ protection is suggested, in order to protect fundamental rights. However, what happens in situations where intimate information about a person is disclosed through instant messaging applications? How is the owner of this information, who has been affected by unauthorized disclosure, protected in such cases?
The Constitutional Court has addressed this issue and concluded that if a person leaks an intimate image of another person, which is in their possession as a result of an exchange of photos through instant messaging applications, it could potentially violate the fundamental right to privacy. Now, the Court reached this conclusion by examining the concept of "Expectation of Privacy," which has been developed in other jurisdictions (such as the North American) 2 . The Expectation of Privacy is a relevant criteria to determine whether certain expressions or manifestations of individuals are within the scope of protection of the fundamental right to privacy. This takes into account factors such as:
- The more or less open nature of the messaging system under which the conversation takes place.
- The type of information being shared, and whether this information is protected by regulations like the Law 1581 of 2012. 3
- The rules or guidelines that have set limits on the circulation of expressions or shared information, among others.
Now, the concept of Expectation of Privacy gains even more strength when it comes to private or confidential information (including a person's intimate or sexual information) and when conversation participants have requested not to disclose the information. Considering the above, if, as a result of a conversation known as "sexting," one party discloses intimate information about the other person (including images), it violates the right to privacy, which can be protected through a writ of protection. Additionally, the Constitutional Court has stated that, in these circumstances, fundamental rights such as honor, good name, and the management of one's own image could also be infringed upon. The situation described above is a universally recognized concept colloquially known as "revenge porn," which involves the diffusion of intimate images without the consent of the person, taking advantage of the prior consent given by the victim at the time they sent the sexually explicit images.
On the other hand, is it possible for the person sharing the intimate image of another person to engage in criminal conduct? Firstly, which is beyond dispute, is that if the intimate image involves a minor, anyone sharing this information will be committing the crime of Pornography Involving Individuals Under 18, as stipulated in Article 218 of the Criminal Code 4 . This offense carries a penalty of 10 to 20 years of imprisonment (increased by one-third to one-half if the perpetrator is a family member of the minor).
The second scenario arises when the intimate image involves an adult. In this case, there is no specific crime in the Criminal Code that directly penalizes the disclosure of intimate content belonging to a person's private sphere. However, in these cases, the offense of insult through act, as defined in Article 226 of the Criminal Code, is applicable. This offense carries a prison sentence of 16 to 54 months and a fine ranging from 13.33 to 1,500 times the monthly minimum wage (SMLMV). Additionally, under certain circumstances, the offense of personal data violation may also be established.
Therefore, even though there is no specific crime that protects victims from behaviors related to the disclosure of their intimate information shared through private conversations among adults, the offense of insult through the act serves as an acceptable solution.
Yet, there is another behavior defined by the legislator that determines the criminal responsibility of those engaging in these acts, namely, the crime of unlawful coercion. This criminal offense is outlined in Article 182 of the Criminal Code, which states the following: "Anyone, outside of cases expressly provided as a crime, who compels another to do, tolerate, or omit something, shall incur imprisonment for sixteen (16) to thirty-six (36) months." For its configuration within the scenario being analyzed in this article, it will be necessary for the active subject to disseminate the victim's intimate information without their consent.
It is necessary to mention that this year the Government introduced a reform aimed at humanizing the penal system in Colombia. Among the proposals, the elimination of various crimes from the Penal Code was suggested, including the crime of defamation. Therefore, in the event that, indeed, this crime is eliminated, victims would only be protected in the penal realm by the crime of illegal coercion. However, it is necessary to create a specific criminal type for these circumstances so that victims do not depend solely on the crime of illegal coercion, which could be considered a catch-all criminal offense.
In conclusion, considering that the legislator reacts to social phenomena as they arise, the practice under analysis lacks a specific criminal sanction. However, it is imperative that, in the event the crime of insult is removed from the Criminal Code, measures are taken to provide greater protection to individuals harmed by the unauthorized diffusion of their intimacy. This is because the solution cannot solely rely on requesting the removal of an image or video or filing a writ of protection. Additionally, requesting the respective removal of content is somewhat unrealistic, as in practice, once information is disseminated, it is impossible to control who receives it and the extent of its reach. Moreover, the harm to the victim's privacy, reputation, and honor can be irreparable.
