The Chilean press has been able to carry out its reporting duties during this period without major difficulties, although there is concern over developments affecting the right to freedom of expression.
On April 4, 2003, a court in Temuco acquitted the editor of the newspaper El Diario Austral of La Araucanía, a reporter at the same newspaper and a lawyer, who had been accused by another lawyer of defamation and libel. Judge María Elena Llanos stated that she had to issue an acquittal because she had not been convinced “beyond all reasonable doubt that the punishable act alleged in the complaint had actually been committed, or that the defendants had participated in the act in a culpable manner punishable under the law.” This is the second ruling handed down under the provisions of the new Chilean criminal procedure in cases of defamation and libel. Both cases were dismissed by the courts.
In July 2003, the Senate voted to repeal the reference to libel in the 1980 Constitution, with 36 votes in favor, four opposed and one abstention. This constitutional reform should now be considered by the Chamber of Deputies.
As for prior restraint, the family of a murdered attorney filed an appeal with the Court of Appeals of Santiago, and the court subsequently issued an injunction to prevent the Televisión Nacional de Chile (TVN) channel from broadcasting a July 23 news report on the police investigation into the case.
On August 4, 2003, the full session of the Supreme Court agreed to ban judges from talking with the press. In the face of the reaction that ensued, the Supreme Court announced that it would review its decision. In another full session it decided by a majority vote to maintain this restriction. The so-called “secrecy of criminal investigations” from the former penal code only applies in those areas of the country where the procedural reforms have yet to be implemented, which are Regions V, VI, VIII, X and the Metropolitan Region. In the rest of the country proceedings are oral and public.
Chile has no law guaranteeing access to public information. This deficiency was partially remedied by two provisions incorporated into the Public Administration Act (DFL no. 1/19.653), which require that authorities provide access to records upon request. However, public administration agencies can refuse to provide these records if it would interfere with their work or affect third parties. The person whose request for information is denied may appeal this decision to the courts in order to gain access to the information in question.
Unfortunately, a related policy was established that further restricted access to information. This regulation set forth the guidelines that every administrative body must follow in order to make decisions as to which documents are reserved or confidential. This authorization gave rise to a large number of decisions that have virtually shut off access to public information. Between May and September of this year, no fewer than nine such decisions have been rendered, many of them declaring as confidential “all official documents classified as confidential in accordance with executive decree no. 291 of 1974 of the Ministry of the Interior.” As a result, the modest goal of opening up the Public Administration Act has been effectively thwarted.
The extreme vagueness as to which matters are considered confidential is strikingly reflected in a resolution of the Agriculture and Livestock Service (SAG) published in the Diario Oficial of September 3, 2003, declaring as confidential the “minutes of the Service’s advisory committee meetings dealing with strategic issues.” Also, there are government bodies that have regulations restricting the disclosure of information, such as the Central Bank, which was recently named in a petition to force it to provide records on a study of the native forest.
Law 19.980, published in the Diario Oficial of May 9, 2003, sets forth the rules for administrative procedures governing the work of public administration agencies. Article 16 of this law reaffirms the principles of transparency and public access:
“Administrative procedures shall be carried out with transparency, so as to allow for and promote the knowledge, content and basis of the decisions made therein. As a result, unless otherwise provided by law or regulation, the administrative actions of public administration agencies, and the documents that directly or primarily support or supplement them, shall be public.”
In September 2002, the executive branch sent to Congress a bill intended to remove the crime of contempt from federal law. The Chamber of Deputies decided not to take up this bill until the administration provided an alternate bill, as it had promised, for protection of personal privacy and reputation.
There exists broad consensus that the crime of contempt is long outdated. This was made clear in April 2003, when the Court of Appeals of Santiago acquitted a lawyer on trial for libel against the judiciary. However, even though the Chamber of Deputies received the draft of a privacy bill from the executive branch, it has not approved of its content, since it mainly protects ordinary people and reduces the level of protection for people performing public service.
In any event, a bill on this matter is now under consideration in the Chamber of Deputies, awaiting a second draft from the Constitution, Law and Justice Committee, and has been approved in principle by the Chamber. As for the alternate bill sent by the executive branch, the committee has set a deadline of October 2003 to adopt a resolution on the bill.
As for the contempt bill, the text of the first draft is soon to be considered by the Chamber. While the original intent was to deal with it together with the privacy bill, delays have forced them to be considered separately.

questions or comments? e-mail us

Copyright © 2003 Inter American Press Association. All rights reserved.

.