III. FREEDOM OF EXPRESSION IN THE CHILEAN CONSTITUTION

General Norms

Article 19(12) of the Chilean Constitution protects the "freedom to express opinions and to inform," and prohibits prior censorship. It also requires that legislation introducing restrictions on freedom of expression be approved by an absolute majority of the Congress. Even when a majority is assured, no law restricting freedom of expression may interfere with the exercise of the right "in its essence."15

Despite these formal protections, the Constitution contains no language addressing the circumstances in which freedom of expression may legitimately be restricted. The International Covenant on Civil and Political Rights(ICCPR) and the American Convention on Human Rights, both of which Chile has ratified, stipulate that the only legitimate grounds for such restrictions are to safeguard the rights and reputations of others, to protect national security, and to preserve public order, health or morals. Such restrictions, moreover, must not violate the prohibition of prior censorship found in Article 13 of the American Convention.

Defamation and Contempt of Authority

The rights to honor, reputation and privacy are protected in Article 19 of the Constitution, which explicitly makes defamation a criminal offense.16 While in some instances truth is a defense to a claim of defamation, such a defense does not exist in cases involving libel "against private persons." Thus, while the Constitution may protect a journalist investigating corruption allegations against a public official if he or she can prove the allegations to be true, it does not protect a commentator who reveals information, true or false, about a celebrity or official's private life.17 In any case, the onus is on the person accused of publishing defamatory information to prove that his or her statements or allegations refer to a matter of public importance. The Constitution leaves unresolved where the division between private and public life should be drawn. In practice, press criticism or debunking of public figures can easily lead to a criminal defamation suit since judges often give the benefit of the doubt to the "offended" party in such cases. Fear of being prosecuted for criminal defamation, and the difficulty of mounting a defense if a public interest cannot be proven, is a strong disincentive to outspoken press criticism. Furthermore, even if able to prove a public interest, a critic who finds him or herself unable to establish the truth of a statement in court stands at risk of conviction for defamation.

The inclusion of the crime of defamation in the Constitution, which was recommended by the Council of State (an appointed legislative body under the military government), still has its defenders, particularly among rightist members of the Senate. However, in 1998 the Senate rejected by a large majority a bill punishing defamation proposed by a pro-Pinochet senator. In early January, 2001 the Senate's Committee on Legislation and Justice unanimously approved a constitutional reform to eliminate the defamation clause. However, the Constitution requires a majority of two-thirds of Congress to approve a constitutional reform.

According to a recent expert study, "defamation laws cannot be justified if their purpose or effect is to prevent legitimate criticism of officials or the exposure of official wrong-doing or corruption."18 The same study calls for criminal defamation laws to be abolished and replaced, where necessary, with appropriate civil defamation laws.19

Where criminal defamation laws do exist, the expert study recommends that defamation claims be judged according to a strict set of rules: it should be proven "that the impugned statements are false, that they were made withactual knowledge of falsity, or recklessness as to whether or not they are false, and that they were made with a specific intention to cause harm to the party claiming to be defamed."20 This is a far more stringent test than that currently applied in Chile, where, as noted, to escape liability the defendant must actually prove the truth of the impugned statement. As noted, in cases in which a public interest cannot be proven, even the defense of truth does not excuse the person accused of defamation.

Even more glaringly at odds with democratic freedom of expression standards are provisions of the Law of State Security which prohibit contempt of authority, described in detail in Chapter IV. Many countries in the Americas retain such contempt of authority laws in their criminal codes, but in no country have public officials used them as persistently as in Chile. Moreover, Chile is the only country in the hemisphere in which contempt of authority is considered a crime against state security, a designation that entails an abbreviated judicial procedure and fewer possibilities for defense. Although such prosecutions are invariably initiated by government officials intent on defending their public reputation or honor, courts do not accept the defense of truth as a defense, apparently violating the constitutional precept that this defense be considered grounds for acquittal where a public interest is involved.

The special privileges thus extended to state officials are essentially in breach of international human rights law, as the Inter-American Commission on Human Rights pointed out a in report published in 1994.21 The commission pointed out that public officials, like other citizens, are protected by ordinary libel laws, and any additional protection granted them by virtue of their official status would not comply with the requirements of Article 13(2) of the American Convention. In reaching this conclusion, the Commission applied the three-pronged test now widely accepted in international law for assessing the validity of restrictions on freedom of expression. Restrictions, to be justified, must be legitimate, established by law, and "necessary in a democratic society."22 Even if contempt of authority provisions can pass the first two tests, they fail the third, since "the protection of honor in this context is conceivable without restricting criticism of the public administration."23

Furthermore, in Chile libel suits can lead not just to prosecution, but to the confiscation of publications by the courts, violating the constitutional prohibition of prior censorship. The Law of State Security and several articles of the current Code of Penal Procedure allow judges to impound publications to prevent the circulation of material alleged to be libelous. Moreover, the enforcement by judges of a writ for the protection of a constitutional right (in this case, the right to honor or privacy) may also result in a banning order, as was the case with the film The LastTemptation of Christ. In general, judges do not acknowledge that such prior restraint constitutes censorship within the meaning of Article 19 (12). In practice, they are often zealous in protecting the constitutional rights to honor and privacy, much less so in protecting free expression.

Film Censorship: A Category Apart

The final paragraph of Article 19(12) of the Chilean Constitution establishes "a system of censorship for the exhibition and publicity of cinematographic production," an exception to the Constitution's general protection of the right "to emit opinions and to inform, without prior censorship, in whatever form and through whatever medium." The Constitution's drafters evidently believed that the cinema merited exceptional treatment, perhaps because of the immediacy and impact of cinematographic imagery compared to the written word.

International standards on freedom of expression, however, recognize no such distinction, and make no special allowance for the censorship of cinema. The American Convention allows prior censorship of "public entertainments," but "for the sole purpose of regulating access to them for the moral protection of childhood and adolescence."24 The role of the film review bodies that exist in most countries is to protect children and adolescents from exposure to unsuitable material, not to ban films altogether from exhibition to adults. As we note in Chapter VI, this anomaly has led to a vigorous debate in Chile and to several bills aimed at bringing Chilean constitutional norms on the cinema into line with international standards. Like all the reforms that have been proposed and discussed in the legislature, they still await passage in Congress.

The Right to Information

No provision of the Chilean Constitution explicitly protects the right of the individual to obtain government-held information. According to an authoritative interpretation of the Constitution, however, this right is considered to be implicit in the right to inform, which is protected in Article 19(12).25 The right to receive information is recognized in both the ICCPR and the American Convention, both of which refer to a right to "seek, receive and impart (information)." In Human Rights Watch's view this right should be interpreted as generally entailing an individual's right of access to official information, as well as information that is generally available. Although international human rights law does not explicitly provide a right to such official information, the state is required to "ensure" and "give effect to" the right to inform oneself. The importance of access to official information in strengthening democratic control of public bodies and promoting accountable government has been recognized in European courts and the Council of Europe since the early 1980s. Despite the lack of formal protection of this right in the Constitution, and the absence of legal mechanisms specifically designed to protect it, successive Chilean governments have embraced the need to expand access to public information. Some of these new measures are discussed below, in Chapter VII.

There is a second interpretation of the right to information which has provoked much discussion in Chile. According to this view, the state has an obligation to ensure that the public has access to information or opinions that might otherwise be excluded from the range of publications available on the market. Although intended to safeguard pluralism and the representation of minority opinion in a market dominated by conservative views, state intervention in enforcing such a right could lead to undue state interference in editorial decisions, with negative results for freedom of expression. A bill to enforce media pluralism by law was, in fact, presented to Congress in 1993, but it was forcefully opposed by media owners and pronounced unconstitutional by the Supreme Court.

15 Constitution of Chile, Article 19(26).

16 Article 19(4) of the Constitution guarantees: "respect and protection of private and public life and of the honor of the person and his or her family. The infraction of this precept committed in a medium of social communication, and which consists of the imputation of a false fact or action, or which unjustifiably causes harm or discredit to a person or his or her family shall constitute a crime and shall be punished according to the law." (Translation by Human Rights Watch.)

17 This distinction is made in Article 420 of the Criminal Code, which allows the defense of truth only if the injurious statement concerns a public official and his or her official function.

18 Article 19, Defining Defamation: Principles on Freedom of Expression and Protection of Reputation (London: Article 19, 2000), p. 5.

19 A recent joint statement by three international freedom of expression monitors endorsed this study, specifically recommending that governments, at a minimum, consider repealing criminal defamation laws. Joint Declaration by the U.N. Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression (November 2000).

20 Article 19, Defining Defamation, p. 7. The same principle is upheld in the Inter-American Declaration of Principles on Freedom of Expression: "The protection of a person's reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news."(Principle 10). This is known as the "actual malice" requirement, and is derived from the historic decision of the United States Supreme Court in New York Times v. Sullivan.

21 Inter-American Commission on Human Rights, "Report on the Compatibility of `Desacato Laws' with the American Convention on Human Rights," Annual Report of the Inter-American Commission on Human Rights 1994, OEA/Ser.L/V/11.88 (1995) (hereinafter IACHR, Report on the Compatibility of Desacato Laws).

22 In a key judgment the European Court of Human Rights ruled that "the adjective `necessary'. . . implies the existence of a `pressing social need.'" See Sunday Times v. United Kingdom, judgment of April 26, 1979, Series A, No. 30.

23 IACHR, Report on the Compatibility of Desacato Laws, p. 210.

24 American Convention on Human Rights, Article 13(4).

25 See José Luis Cea Egaña, "Estatuto Constitucional de la Información," Revista Chilena de Derecho,Vol. 8, No. 1-6, 1981, p.8.