Esperanza Gomez vs. Instagram: key case goes to court

The Colombian Constitutional Court has on its hands a case that could set a very important precedent on the activity of influencers in social media and freedom of expression online. The origin is the legal dispute that Esperanza Gómez, the adult content industry actress, has waged to recover her Instagram account.

In November 2021, Gomez was permanently suspended from Instagram for breaching, according to the company, sexual services policies. These prohibit the promotion of prostitution and other activities related to the sex trade on the platform. 

According to what Esperanza Gómez has stated before judges and different media outlets, the content she published on her account was not necessarily linked to her profession, nor did she use that space to promote sexual services. Like many other influencers, she uploaded images in her underwear and used her account - where she had more than 5.7 million followers - to promote different brands that hired her. 

Although Esperanza Gómez followed the internal appeal process and contacted the company on several occasions, she never received a response. In the end, she decided to file a tutela action, an expedited judicial mechanism that in Colombia allows for the preferential protection of fundamental rights. According to the lawsuit, Instagram's sanction caused her serious economic losses and affected her rights to freedom of expression, work and equality.

After two judges denied its claims, the file reached the Constitutional Court and was selected for review. To evaluate the case, which includes issues such as content moderation, gender, right to work in social media and Internet management and infrastructure, on November 15 the corporation held a technical session to hear the opinions of a group of experts from civil society, academics and representatives of Internet companies, in addition to those of the actress herself and her defendants: Facebook Colombia, the company's subsidiary in the country and Meta Platforms, which did not appear. 

The case of Esperanza Gómez highlights some of the main tensions in the activity of creators in networks and the processes of the platforms to serve their users. At the hearing, the actress pointed out the lack of consistency in Meta's policies, which were applied more strictly to her than to other content creators, who disseminate similar content without inconvenience. 

Gómez has described his situation as persecution. According to him, it is not his content that is being punished, but his profession. Something similar was expressed a few months ago by Pornhub, one of the largest pornography sites in the world, which, upon losing its Instagram account for good, published a letter denouncing the "opaque, discriminatory and hypocritical" way in which the company applied its policies.

Like all social media, Instagram has the power to create rules to regulate the behavior of its users. However, as a space for the exercise of online rights, the platforms must respect certain human rights standards, as pointed out by Carolina Botero, director of the Karisma Foundation, in the session convened by the Court.

Pressure from civil society and academia, as well as reputational crises resulting from scandals in recent years, have led platforms to have increasingly clear commitments to the defense of human rights, such as transparency reports, impact assessments of their activity, and external audits of their decisions in certain countries in conflict. In the case of Meta, this commitment is even more present with the creation of the Oversight Board, a sort of Supreme Court that resolves content moderation cases in light of community standards and international human rights treaties, Botero pointed out. 

Regarding social media as work spaces, the Court will have to decide how to develop labor relations and guarantee the freedoms of those who find in the platforms a showcase to offer their own products or make visible those of other brands. Colombia, like most countries in the world, lacks legislation to protect the profession of content creators. The Court's decision may be a first step to set some standards and clarify concepts.

For José Luciano Sanín, director of the conglomerate of civil society organizations Viva la Ciudadanía, it is clear that the platforms are not employers of users, but the commercial activities of content creators give rise to related labor rights, such as freedom of work. In this sense, any decision, especially one as serious as the permanent closure of an account, can cause serious damage to users, who lose, sometimes completely, the possibility of earning an income.

On this point, Carlos Cortés, co-founder of Green Lantern, said that by creating value for the platforms and building communities in those spaces, influencers have reasonable economic expectations that must be respected and guaranteed in some way.

For the time being, Meta, as well as its subsidiary Facebook Colombia, have sought to disassociate themselves from any responsibility related to the case. The company that represents Mark Zuckerberg's company in the country has argued that its activity is limited to commercial matters and that the management of Instagram, including content moderation, corresponds to Meta Platforms, the parent company in California. 

This argument, which has been raised by the platforms before, was dismissed in the technical session by Francisco Reyes Villamizar, former Superintendent of Companies, for whom the composition of the company in the country gives responsibility to Facebook Colombia.

In a few weeks or a couple of months the Court's decision should be known, which will not only resolve the situation of Esperanza Gómez, but will also establish parameters to evaluate the constant tension between the rules of the platforms, human rights and the democratization of the digital world. This was explained at the end of the session by Judge Natalia Ángel Cabo, in whose office the actress's case is pending: "Our role as judges is to help build a democratic society where fundamental rights are guaranteed both online and offline , and our effort is to make a decision that responds to these constitutional principles and values". 

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