Colombian adult film actress Esperanza Gómez has spent a year trying to regain the number of Instagram followers that she had before the platform closed her account, which exceeded five million fans at the time. Her attempt to recover a community that, she claims, used to be a source of income for her, has gone hand in hand with a legal battle against Facebook Colombia, Instagram Colombia and Meta Platforms. The case reached the Constitutional Court with a writ of protection in which the actress argues that her rights to freedom of expression and work, among others, have been violated. This week, the review chamber that took the case because “it could have an impact on many other users of the social network” met with experts in digital rights to advance the process, whose ruling could be known in two weeks.
The fight between Esperanza Gómez, 42, and the defendant companies, began in 2021. According to the writ, during March and November of last year, Instagram informed her that six images had been removed from her posts because they contained sexual services that “violated the community guidelines” of the platform. Gómez, who could not understand how she could be violating the company’s policies, continued to publish her content, as it was a channel to expand her business model and consolidate her personal brand. Eventually, Instagram deleted her account, with all her files, posts, messages and followers.
Gómez found the measure disproportionate and unfair. She argues that she never acted against the rules of Instagram: she did not infringe copyright, her content was always real and suitable for all audiences, she complied with the legal norms, did not promote any sexual services, respected the other members of the community, did not threaten or harass anyone and always used appropriate language. In conclusion, she claims that her publications never promoted violence or any inappropriate practice, and for that reason she decided to take her case to the highest constitutional court.
The actress insists that the posts that caused the closure of her account never included sexual services. They were photographs in which she appeared in her underwear – just like other models and influencers do, she alleges in her claim. The first instance to which Gómez went, a court in Cali, declared her request inadmissible because, it stated, the model neither duly exhausted the protection mechanisms available to her nor did she demonstrate irreparable damage. The judge also argued that Meta Platforms, the owner of Instagram, was in charge of managing the service and, being an entity based abroad, it was beyond their competence “to issue some type of order against it.”
Gómez, however, claims that she has submitted at least 20 requests to recover her account since December 2021 without receiving any response, and that, contrary to what the judge stated, Meta Platforms is subject to the constitutional jurisdiction of Colombia, under the argument that “all companies, national or foreign, that use the Colombian electromagnetic spectrum to carry out their commercial activities are subject to the Constitution and the laws.” The actress alleges that the national courts are competent to resolve conflicts that arise between users of that social network in the country and the company.
With her case, the actress seeks the protection of her fundamental rights to equality and non-discrimination, to freedom of expression, to the free development of personality, to work, to a dignified life and to the vital and mobile minimum. Gómez asks that her account be restored – followers included – and that she be paid compensation for the economic damage she claims to have suffered for a year.
A groundbreaking case
The outcome will not only affect Esperanza Gómez; the case was selected by the magistrates precisely because of its novelty and because of the jurisprudence that it can draw on a subject that is still under debate. Catalina Moreno, a lawyer from the Karisma Foundation, a civil organization that protects and promotes human rights and social justice in digital environments, says that this is the first time that the Court deals with a case of content moderation that may affect work and the vital minimum, in addition to the violation of the freedom of expression.
Moreno is the coordinator of social inclusion of Karisma, one of the organizations that were summoned to the technical session that the Court convened this week to review the case. “The exercise of rights in digital environments is an issue that has not been addressed enough. This case can give us the first glimpses of what happens when interactions that used to be exclusive to the public space are transferred to the digital space, such as the right to work,” explains the lawyer. According to the expert, “as it happens in real life, the law [in the digital realm] is not neutral and gender perspective is tied to the fact that she performs a sexual service (as a porn actress). She could be being punished for her visibility and for the open way in which she carries out her occupation.”
The company has stated that there are other judicial mechanisms to settle a contractual dispute over the conditions of use of the account, and claims that Gómez has not shown that she completed the process to request reactivation. The company asks to be removed from the case and that her request be denied. However, the Court has already ordered Meta Plarforms to answer several questions, such as how many Instagram accounts it has removed for including or promoting adult sexual services in the last five years, specifying the gender of their owners. The Court also asked what the social network understands as the promotion or inclusion of adult sexual services, and if someone who works in the adult entertainment industry can have an Instagram account, and under what conditions.
The case of Esperanza Gómez could set the rules in Colombia for a growing industry of webcam models and actresses who promote content on Instagram that is explicit on other digital platforms.
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