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V. REFORM INITIATIVES: THE POLITICIANS GET NERVOUS

The defamation provisions of the State Security Law should have been among the first targets of an elected civilian government intent on establishing effective democratic controls after a long period of dictatorship and authoritarian rule. These provisions should have been abolished quickly after the restoration of democracy in 1990. Yet, almost a decade passed, during which time the law continued to impose invisible limits on public debate and to encourage self-censorship in the media, before any serious reform initiative was introduced in Congress.

As noted previously, the detonating factor for reform was the seizure of The Black Book of Chilean Justice in April 1999. The introduction immediately afterwards of a bill to eliminate the crime of defamation from Article 6(b) seemed to offer hope of rapid reform, given the almost universal condemnation of the book's censorship and the cross-party support apparently enjoyed by the reform initiative. But many parliamentarians hedged when it came to approving changes that would deprive them of part of their own shield against inquisitive public scrutiny. As of February 2001, twenty-one months after the reform was first proposed, its future is still uncertain. The complete removal of the crime of contempt of authority from the statute books, a basic condition for a vigorous public debate, seems almost as remote as ever. A brief history of the initiative shows the nervousness aroused in Congress by the reform.

The Politics of Reform

On April 21, 1999 some members of the Chamber of Deputies from the Socialist Party, the Party for Democracy,and the liberal wing of the Christian Democrats introduced a bill to remove the contempt of authority provisions from the State Security Law. The bill was quite modest in scope. It proposed to repeal Article 6(b), except for a (rarely invoked) prohibition against acts defiling the national flag, crest and name of Chile. It would also amend (but not abolish) Article 16, and thus would still permit the confiscation of any publication deemed to offend national security, internal security or public order. The bill would, however, eliminate Article 17, which refers to the "flow-chart" liability of directors, editors, publishers and printers.

Initial discussions over the bill took place in the Chamber of Deputies' Committee on Constitution, Legislation and Justice. Here, the Frei government introduced several modifications expanding the scope of the initiative, the most important of which was to propose the repeal, in addition, of the contempt of authority provisions of the Criminal Code.70

These more radical reforms proposed by the "abolitionists" in the executive branch alarmed influential right-wing parliamentarians as well as many on the government's own benches, particularly in the Christian Democrat Party. As a result, and as a trade-off for the Criminal Code reforms, the "retentionists" on the committee won support for a proposal to amend Article 429 of the Criminal Code, which deals with the offense of ordinary libel and calumny, in such a way that defamation of certain public authorities would be considered a more serious offense than ordinary libel, with tougher penalties.71 Even with this major concession, when the committee presented its report to the plenary of the Chamber of Deputies, objections were raised on all sides. Members of the right-wing opposition party, the Independent Democratic Union, opposed any change to Article 6(b). The Christian Democrats were divided, as was National Renovation, the other opposition party.72

The objections led the committee to drastically water down its original draft. It dropped altogether the proposal to repeal the Criminal Code's contempt of authority provisions. Even so, it persisted with the new version of Article 429, which would give public figures greater protection from libel than ordinary citizens. Thus, although public authorities would no longer be able to deploy Article 6(b) against critics, they would still have the Criminal Code provisions at their disposal. Moreover, the higher penalties contemplated in the proposed new version of Article 429 would be applicable to offenses under the Criminal Code articles. There was, therefore, a serious risk that contempt of authority would actually end up being even more heavily penalized than it is at present under Article 6(b).73

On the issue of confiscation, the committee's final proposal was also diluted, being limited to the repeal of Article 16, which had been used for the censorship of The Black Book. The government had also proposed to abolish Article 30 of the State Security Law, which requires judges to place before the court any materials (books, pamphlets, tapes, records, etc.) used to commit an offense of libel against a state authority, since, it was believed, this could also be used in its current wording to permit prior censorship. However, the committee approved only the amendment of this article, according to which judges would be allowed to confiscate only "the number of copies strictly necessary," a wording that carried the risk of being interpreted to mean all the copies of an offending publication, if the offense was considered particularly serious. The lower house of Congress finally endorsed the committee's proposals on October 6, 1999.

Fearing rejection of the package in the Senate, the government adopted a different strategy. It decided to incorporate the reform of Articles 6(b),16 and 17 of the State Security Law, together with some provisions of lesser importance, into the proposed Press Law, which was then in the final stages of debate in a joint committee (comision mixta) of both houses after a tortuous seven-year sojourn in Congress. The government calculated that the incorporation of its reform proposals into this comprehensive bill would be the surest way to have them approved. In parallel, it retained as a separate initiative the original bill to reform other articles of the Law of State Security, including Article 30.74 Government ministers expressed optimism in early May 2000 that the Press Law would pass the Chamber of Deputies without difficulty.

On May 16, 2000, however, the Chamber of Deputies rejected the text of the Press Law approved in the joint committee by a large majority, to the chagrin of President Lagos's ministers and protests from the Senate. From the government benches, only five members gave their support. In part, the contempt of authority reforms, limited as they were, fell victim to other issues in the Press Law that had proved highly divisive in the past, in particular the issues of pluralism and media concentration. Many on the left objected to the bill's proposals to reinforce pluralism and diversity in the media as lukewarm and ineffectual. However, these disagreements about concentration and pluralism in the media by no means accounted for all the objections to the bill. Among its changes to the draft approved in October 1999 by the Chamber of Deputies, the joint committee had agreed to dispense with the controversial proposal to amend Article 429. As La Tercera reported:

Some deputies . . . were not prepared to approve the bill without re-introducing this new prerogative which compensated for the loss of the privileges provided by the State Security Law. This position crossed all the benches."75

Following this reverse in the Chamber of Deputies, President Lagos vetoed the little that remained of the Press Law as unviable. After arduous negotiations with his Concertation party colleagues in Congress, Minister of the Secretariat of Government Claudio Huepe introduced a revised version of the Press Law in August 2000, retaining the amendment to Article 6(b) and the repeal of Article 16. The new version contained no reference to the contempt of authority articles of the Criminal Code. The revised proposal was approved in committee on November 7, but as of the end of the year still had not cleared the Chamber of Deputies.

Privacy Norms: A Recipe for Self-Censorship?

One issue left pending in the government's latest version of the Press Law profoundly concerned the journalistic community. The Senate had voted for the repeal of the Law on Abuses of Publicity (to be replaced by the new Press Law) but, anxious to preserve politicians' protection against invasion of their sphere of privacy and intimacy, failed to include in the new Press Law any protection for journalists who reveal details of a politician's private life ongrounds of public interest. While Article 22 of the Law on Abuses of Publicity banned the publication of information about a person's private life, it made an exception in several cases, including when the information revealed was relevant to the exercise of a public office, or of a profession implying a public interest. Now, Article 22 was to go, leaving in place and without any qualifying language Article 161 (a) of the Criminal Code, the so-called Otero Law. This article, introduced in 1995, punishes with imprisonment and a fine any one who:

captures, intercepts, records or reproduces by whatever medium conversations or communications of a private nature, in private premises or in places to which the public does not have free access, without the authorization of the affected party; steals, photographs, photocopies or reproduces documents or instruments of a private nature; or captures, records, films or photographs images or events of a private nature that take place, occur, or exist in private premises or places not of free public access. The same penalty shall apply to anyone who publishes the conversations, documents, instruments, images or events referred to in the preceding paragraph.76

Representatives of the press raised concerns that the repeal of Article 22 of the Law on Abuses of Publicity would leave journalists vulnerable to prosecution and imprisonment for revealing any details of the private life of government officials and public figures, even where a public interest was clearly involved. The proposed Press Law replaced the penalties of imprisonment for libel envisaged in that law for a system of fines, a laudable advance. A reformulation of Article 22 was introduced which declared the "defense of truth" inadmissable in such cases unless "a real public interest" (which the article attempted to define) could be shown to exist. The trouble with this new formulation was that it placed the onus on journalists to prove a public interest in order to clear themselves of libel. Officials of the Secretariat of Government informed Human Rights Watch in November 2000 that, instead of this new proposal, Article 22 of the Law on Abuses of Publicity would be temporarily retained in the new legislation.77 The introduction of new privacy norms would follow, once the issues had been fully debated.

This debate is an important and overdue one in Chile, where privacy norms are traditionally strict and often invoked by public officials to deter revelations that might harm their public reputation. The right to privacy is a human right recognized in international law and many constitutions, including Chile's. The state's obligations in regard to privacy mainly involve the avoidance of intrusions into privacy by state agents (such as police eavesdropping, interference with private communications, etc). The state, however, also has an obligation to protect people from violations of their privacy by other parties, including the press. But in all societies, protection of freedom of expression requires that a balance be struck between the conflicting, but equally legitimate demands of privacy. Societies with an exaggerated protection of privacy are liable to inhibit scrutiny of important matters of public interest, while those with an overzealous and inquisitive press may interfere unreasonably with personal privacy. While there is no consensus on the precise drawing of the line between public interest and the right to privacy, it is acknowledged that any restrictions on a right as fundamental to a democracy as freedom of expression must be carefully delineated in law and necessary.

In such cases, the precise legal status of the privacy interest needs to be carefully assessed. As one commentator explained: "Restrictions on freedom of expression are legitimate only if they are carefully tailored to serve a pressing social need. This implies that only the least intrusive effective means of protecting interests, including privacy, are acceptable. Restrictions on freedom of expression to serve privacy interests must, therefore, take into account allavailable options."78 In a recent statement on freedom of expression issues, the Special Rapporteurs on Freedom of Expression of the United Nations and the Organization of American States, and the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe, warned that "privacy laws should not unnecessarily inhibit investigative reporting and the exposure of corrupt and illegal practices."79

Restrictions on freedom of expression to protect privacy should be precise and narrowly drawn, while the definition of public interest should be as broad as possible. Whatever the nature of the charges against them, journalists should always have, at minimum, the right to clear themselves by establishing that their statements are true.

70 Articles 263-265 of the Penal Code penalize defamation of the President, members of Congress, judges, ministers of State or other authorities, and even "a superior in exercise of his authority." They have been rarely invoked, an exception being the prosecution of Francisco Javier Cuadra for insulting the honor of Congress in 1995. Their disuse, however, can be explained by the existence of the more severe provisions of the State Security Law. Were the latter to be repealed, it is very likely that the Criminal Code articles would be relied upon as a substitute.

71 The proposed amendment to Article 429 reads: "If the libel or calumny affects the President of the Republic, Ministers of State, Deputies, Senators, members of the High Courts of Justice, Controller General of the Republic, Commanders-in-Chief of the Armed Forces, General Director of Carabineros of Chile, or the Director General of the Investigations Police of Chile, in relation to their office, aggravating circumstance no. 13 of Article 12 of the code will be held to apply." The aggravating circumstance mentioned here applies to offenses "committed with disrespect or contempt of a public authority, or in the place where he (or she) carries out their functions."

72 Marcelo Pérez and Gabriela de la Maza, "Las dificultades para cambiar la Ley de Seguridad del Estado," La Tercera, August 31, 1999.

73 For a detailed analysis of the parliamentary debate, see Felipe González, "Leyes de Desacato," pp. 38-45. Our observations in this section are also based on a discussion with Rodrigo Medina, the Ministry of the Secretariat of Government's representative during the debate in the Chamber of Deputies, at a session of the Chilean Forum on Freedom of Expression, at the Diego Portales University Law Faculty, on April 28, 2000.

74 Ibid.

75 "Rechazan Ley de Prensa para mantener privilegios," La Tercera, May 17, 2000.

76 Translation by Human Rights Watch.

77 Human Rights Watch interview with Ernesto Galaz, head of the legal department at the Ministry of the Secretariat of Government, Santiago, November 20, 2000.

78 Toby Mendel, "The Right of the Public to Know and Freedom of Entertainment: Information Seen From the Consumer's Angle," published in Council of Europe, "Freedom of Expression and the Right to Privacy," Strasbourg Conference, September 29, 1999.

79 "Statement Regarding Key Issues and Challenges in Freedom of Expression,"agreed by Santiago Canton, OAS Special Rapporteur on Freedom of Expression, Freimut Duve, OSCE Representative on Freedom of the Media, and Abid Hussain, U.N. Special Rapporteur on Freedom of Opinion and Expression, London, February 2000.

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