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II. BACKGROUNDAlthough Chile is a stable representative democracy, it retains more legal restrictions on freedom of expression than any other country on the continent. Many of these restrictions predate the military dictatorship that lasted from 1973-1990. The country's repressive legal framework inhibits the vigorous public debate that is the basis of a democratic political system. Several of Chile's institutions have fallen short of their obligations in this area, but the judiciary, in particular, often fails to protect freedom of expression. Despite significant judicial reform in recent years, top judges have been slow to challenge the privileges of authority. They often give undue preeminence to the rights to honor and privacy of public officials over legitimate comment or criticism. Moreover, many do not even acknowledge the fact that injunctions or confiscations of publications, if ordered by the courts, constitute acts of censorship. Although politicians of all parties pay lip service to freedom of expression, in practice their commitment to it has proved to be lukewarm. Tolerance of criticism is fragile. When political controversies become heated, politicians of all ideological tendencies often bring criminal charges of defamation against their opponents in court, or threaten to do so. Even debates over historical issues can lead to criminal litigation, if one of the parties feels aggrieved by what it sees as a slur, misrepresentation, or distortion of the facts. In this sense, underlying the laws and jurisprudence, there exist powerful informal controls on freedom of expression, and a widespread tendency toward self-censorship. What is missing, beyond the detailed legislative changes currently under debate, is a deep-seated conviction that a democratic state benefits from the cut-and-thrust of a vibrant public debate. Such an appreciation of the value of open public debate is essential for ensuring government accountability and avoiding abuses of power, for protecting individual rights, and for providing a climate in which a plurality of ideas can flourish. So far, most of Chile's politicians have not provided the leadership required to promote such debate and pluralism effectively. The slow progress on freedom of expression reform is not due to a lack of stated government interest. President Ricardo Lagos and his center-left coalition government have repeatedly declared their commitment to removing the constitutional obstacles that have prevented Chile for a full decade from becoming fully democratic. Recently, for the first time in years, an agreement with the parliamentary opposition on essential constitutional reforms has emerged as a serious possibility. The government sees the removal of controls on freedom of expression as an essential part of the democratization process. But the country has waited ten years in vain for the seeds of reform to bear fruit. The topic does not generate a sense of urgency among Chile's political elite. A population long subjected to the crude restraints of the military government does not chafe at today's lesser restrictions, except in certain areas such as censorship in entertainment. Unlike issues like crime, public health and education, politicians apparently believe that they can avoid reform without facing a strong public reaction. Moreover, as we note in this report, they have been slow to discard the shield against public criticism that antiquated criminal defamation laws provide. Only a small group of legislators drawn from the liberal wing of the Christian Democrats and the center-left parties of the governing coalition as well as a handful of right-wing politicians have demonstrated any real commitment to the issue. The Reemergence of Minority Options The house arrest in London of former dictator Augusto Pinochet on October 16, 1998 presented an important challenge for the Chilean press, which has been frequently accused of timidity and conservatism. News coverage in Chile, as well as internationally, of the arrest, the prolonged government offensive to have Pinochet returned to Chile, the evolution of his trial and of other human rights trials after his return to Chile on March 3, 2000, was intense. The human rights legacy of the dictatorship became, for the first time, the dominant issue in the Chilean news media, andit still is at this writing. The coverage has been more objective than might have been expected given the unconditionally pro-Pinochet stance adopted by the country's two major newspapers, El Mercurio and La Tercera, during the years of the military dictatorship. Nevertheless, editorials in both these papers consistently upheld the arguments of Pinochet's supporters. By contrast, no mass circulation daily paper presented the other side's point of view, although surveys repeatedly showed that more than half the Chilean population supported legal action against Pinochet. The duopoly of the Mercurio and Copesa chains (the former being owners of Las Ultimas Noticias and La Segunda, the latter owners of La Tercera, La Cuarta, and the political weekly Que Pasa) continued unchallenged by any serious competition in the print media. Many on the left of the Concertation of Parties for Democracy object to this concentration of ownership, and believe that pluralism and alternative viewpoints are stifled by it. Ironically, measures they proposed in the Press Law to counteract this imbalance have held up approval of freedom of expression reforms by incurring the determined opposition of newspaper owners. Remembering Chile's divided past, and the controversial role of the right-wing press before and after the military coup, it is not difficult to see why many in the government coalition headed by Lagos also distrust the removal of press controls. A perception that both the Mercurio and the Copesa chains have an axe to grind against the government coalition and the socialist president lingers on. Given the enormous power of these two chains in shaping the country's political agenda, this contributes to a widespread distrust of the press in general. The high profile investigations conducted by La Tercera into alleged influence-trafficking and favoritism by certain judges and government officials who played a prominent role in the prosecution of Pinochet revealed the dilemma starkly. Politicians and legislators of the left accused the newspaper of participating in a conspiracy with a group of rightist parliamentarians to discredit the judiciary, at a moment in which judges were effectively investigating past human rights atrocities for the first time in living memory. La Tercera, however, insisted in editorials that by investigating corruption and abuse of power it was merely carrying out the essential functions of a newspaper in a democracy. Yet, some alternative news sources did emerge in the period covered by this report. These included MTG, a daily newspaper owned by the Swedish Metro chain, which is distributed free outside Santiago's metro stations. Originally called El Metro, the paper appeared for the first time in February, 2000. It was originally to be handed out inside the city's underground transportation system. Distribution inside the stations and the use of the name was forbidden, however, after the Supreme Court accepted a complaint of unfair business practice lodged by the National Press Association. After the success of MTG, La Hora, Santiago's second evening newspaper (also owned by Copesa), which had been facing economic difficulties, also relaunched as a free handout. Both provided condensed versions of the news and neither attempted to compete with the major newspapers in editorial coverage and opinion-formation. The political satire weekly The Clinic (named for the London clinic where Pinochet was arrested) is now on regular sale in kiosks across the city, carrying satirical political comment and humor unimaginable in the early years of the transition. On the Internet, alternative news sources now range from informal bulletins to electronic newspapers, such as El Mostrador and Primera Linea.2 El Mostrador, launched in March 2000, publishes opinion columns expressing a left or libertarian viewpoint, and has often led the rest of the press on important human rights stories.3 Primera Linea is owned by the newspaper La Nación, of which the government is the major shareholder. Itseditorial independence came under question in January 2001, when its editor, Juan Pablo Cárdenas was fired, due reportedly to the site's reporting of a major political scandal involving the payment of excessive severance payments to officials in public corporations.4 These innovations have somewhat offset the impoverishment of the Chilean print media over the last decade due to the economic collapse of newspapers and periodicals presenting an alternative viewpoint, which flourished in the last years of the military government.5 One of the most divisive themes in Chile is its own history. It is not uncommon for threats of litigation to cast a shadow over debates that revive old political divisions, ideological disputes, or historical characterizations. For a few days, the papers report that a citizen is "studying" libel litigation, after which he or she usually, but not always, desists. Most conflictive of all are the interminable discussions of who was to blame for the 1973 military coup. In May 2000, for example, right-wing parliamentarians, with the backing of the Jaime Guzmán Foundation (set up in memory of Jaime Guzmán Errázuriz, founder of a pro-military conservative opposition political party and one of the authors of Chile's authoritarian constitution), tried to persuade the Lagos government to withdraw a Ministry of Education primary school history textbook which covered the events leading up to and following the September 11, 1973 military coup. One of the nineteen "tendentious" or "biased" assertions flagged by the Guzmán Foundation was the use of the word "coup" to describe the events of September 11:
Although the authors admit that September 11 may be referred to as a coup or a "pronouncement," on both occasions in which the students are assigned tasks, the word "coup" is used. It is stated that seventeen years had to pass before Chilean society would recover democracy, as if the latter were an anonymous achievement of the masses, without any reference to the itinerary, perfectly traced and implemented by the armed forces, to reconstruct democracy in Chile.6 The foundation also complained that: [I]t is stated that the Constitution of 1925 recognized a "lay society (sociedad laica), when in reality it established freedom of religion. The use of this expression tries to impose this type of organization - without God - on the future of Chile. One of those who commented in the debate that followed the publication of the foundation's objections was historian Cristián Gazmuri, who noted that the textbook's "crime" was to express a viewpoint distinct from theorthodoxy of the military government: It was the detention of Pinochet in London that broke the mold of this official history and enabled the negative aspects of the military government, especially the "disappearances" and the policy of state terrorism to be considered as, or more, important historically than the economic successes. A school history text takes up this new viewpoint, partially and moderately in my opinion, and immediately a polemic breaks out.7 In any event, the ministry's textbook was retained unaltered. Nevertheless, one of Santiago's upscale boroughs, Las Condes, issued its own alternative textbook in September.8 Publication of Cristián Gazmuri's 1000-page biography of Eduardo Frei Montalva, one of Chile's best-known post-war presidents, and father of former President Eduardo Frei Ruíz-Tagle (in power from 1994-2000) was halted for two years due to objections lodged by members of the Frei family to several passages of the text which were less than adulatory.9 Some of the objections centered on Frei's well-known initial support for the military intervention, and concerned descriptions of meetings between Frei (father) and army generals in the months leading up to the coup, and a meeting between Frei and Pinochet in December 1973, three months after the coup. When, after the long stand-off, the book was finally launched on October 10, 2000, Frei's daughter, Senator Carmen Frei, challenged its veracity and the objectivity of one of its co-authors in a debate in the Senate.10 In November 2000, several Mapuche indigenous organizations filed a libel suit in Santiago's 33rd Criminal Court against a prize-winning historian, Sergio Villalobos, for a newspaper article which they alleged cast aspersions on the honor of the Mapuche people. The article, entitled "Araucania: Errores Ancestrales" appeared in the May 14, 2000, edition of El Mercurio. It dealt with events that took place in the 16th and 17th century colonization of the Araucaria by the Spanish conquistadores. Prominent historians came to the defense of Villalobos, arguing that it was unprecedented and quite inappropriate for a historical controversy to be aired in a court of law, while others defended the Mapuches' action.11 The bitterness that still surrounds events in Chile's recent past explains much of the climate of intolerance that still exists. It was well exemplified in August 1999, when Father Raúl Hasbún, a priest who appears regularly on television and is either loved or hated for his anticommunist tirades, delivered a stinging attack on socialists at the anniversary of the pro-military Bernardo O'Higgins University. He denounced "marxist-leninist socialism" (sic) as "intrinsically unpatriotic" and "parasitical." Amid a political storm over Hasbún's declarations, the Chilean Socialist Party, defended by two prominent human rights lawyers, launched a libel suit against the priest, who received the public backing of Santiago's archbishop, Francisco Javier Errázuriz. Both Hasbún and the archbishop criticized the terms used by the socialists and their defenders against him as derogatory and insulting. After difficult negotiations to reach a settlement, the Socialist Party finally withdrew its suit, but not before attempting to extract a public apologyfrom Hasbún. The dispute was headline news for several days.12 Considering the constraints imposed by the country's political and religious establishment, the Lagos government has taken a stand in favor of cultural pluralism, and on occasion has not shirked taking risks. Cultural life sometimes takes the form of a stand-off between artists and conservative opinion-leaders. An example was the so-called Nautilus Project, a transparent glass "house" erected in a busy downtown Santiago street in late January 2000, in which a young actress lived day and night for several days in full view of passers-by. The work was designed and built by two young architects from the Catholic University with a grant from FONDART, the state Fund for the Development of the Arts and Culture. It caused a commotion after a television news sequence of the girl naked in the shower brought hundreds of male onlookers to the site.13 Although opinion polls showed support for the project, a private citizen lodged criminal charges against the artist, the organizers, FONDART and the leasers of the site for "public outrage against modesty and good customs," an offense which under Chilean law can lead to a three-year jail sentence. Significantly, on March 27, judge Carlos Escobar of the Second Criminal Court dismissed the case after finding that no offense had been committed. Earlier projects backed by FONDART also ran into problems, like Mauricio Guajardo's phallic sculpture celebrating pre-Columbian fertility symbols. Following objections from the mayor and local council of Machali, the town for which the work had been commissioned, the sculpture was relocated to the city of Rancagua. In April 1999, a collage by Jorge Cerezo, with the face of Chilean Independence hero Bernardo O'Higgins superimposed on a woman's body, was removed without explanation from an exhibition in a cultural center in Maipu, a suburb of Santiago, after it had been on show for a week. The exhibition's curator said that the exhibit had been taken down by a local government official after he had received complaints from the O'Higginsian Institute, a body dedicated to the memory of the patriarch.14 2 See http://www.elmostrador.cl and http://www.primeralinea.cl. 3 El Mostrador scooped the major dailies on important human rights stories, such as the leaking in April of a secret military government decree linking General Pinochet to a counter-terrorism unit alleged responsible for extrajudicial executions in the 1980s. It also posted on its webpage recordings of interventions in the Santiago Appeals Court's hearing of the petition for the removal of Pinochet's parliamentary immunity. The Appeals Court's arrangements for the proceedings to be televised had to be abandoned after the Supreme Court, acting underpressure, prohibited live coverage and moved the proceedings to a smaller court room. 4 See International Freedom of Expression Exchange (IBEX), e-mail alert, "Despiden arbitrariamente a periodista de periódico digital," January 23, 2001. Cárdenas was a well-known investigative journalist during the military dictatorship. 5 The demise of Chile's pro-democracy press after the return to democratic rule is described in Human Rights Watch, The Limits of Tolerance: Freedom of Expression and the Public Debate in Chile (New York: Human Rights Watch, 1998) pp. 37-39. 6 "Llamado a retirar textos de Historia de Ed. Básica," El Mercurio, May 16, 2000. Supporters of the coup use the word "pronouncement" rather than "coup" to describe the military's action. 7 Cristián Gazmuri, "La verdadera via de reconciliación," La Tercera, May 31, 2000. 8 "Las Condes elaboró un texto alternativo de historia reciente," El Mercurio, September 29, 2000. 9 Cristián Gazmuri is director of the History Institute at Chile's Catholic University. The biography, Eduardo Frei y su Epoca, was commissioned by the Frei Montalva Foundation with financial support from the West German Konrad Adenauer Stiftung. 10 "Carmen Frei: Mi padre no apoyó el golpe," El Mercurio, October 12, 2000. 11 "Presentan querella contra historiador Villalobos," El Mercurio, November 16, 2000; "Mario Orellana: `Es inaudito llevar a historiador Villalobos a los tribunales'," El Mercurio, November 17, 2000. 12 In an op-ed published when the argument was at its height, the president of Universal Movement Against Censorship, a civil liberties group, was one of the very few who argued that the socialist libel suit was a step back for freedom of expression, and warned: "we should be careful about resorting to lawsuits that affect freedom of expression, because we do not want to get into a procession of lawsuits, and find that we Chileans, champions of self-censorship, are even more inhibited about expressing our opinions." Patricio Westphal, "Tolerancia, Hasbún y PS," La Tercera, August 28, 1999. 13 After being mobbed for several days she was given a police escort, and was eventually replaced by a less attractive male occupant. 14 Andrés Gómez, "O'Higginianos estarían tras censura de obra de Maipu," La Tercera, April 19, 1999.
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