Case Summary and Outcome

The Constitutional Tribunal of Chile declared unconstitutional the application of article 36 B of the General Telecommunications Law No. 18.168, which imposes prison sentences of up to three years for unauthorized operation or exploitation of the radio spectrum. The lawsuit was filed by Francisco Orellana, the legal representative of the community radio Aukan, who faced a prison sentence of 540 days for being on the air without permission from the competent authority. The Court found that while the radio spectrum is a public good which requires regulation, criminal sanctions are a disproportionate remedy for violations and should only be used as a last resort as there are less restrictive means available. The Court also stated that the decision only applied to the case at hand.

Facts

On July 24, 2015 an individual reported the operation of two radio stations without authorization in the commune of San Fernando.

On December 15, 2015, police officers attended the place where the radio station operated and seized the equipment of the community radio Aukan after finding that it was functioning in a dormitory without the permission from the competent authority.

The Public Ministry requested the imposition of a fine and a prison sentence of 540 days against the radio’s legal representative Francisco Orellana Galarce for being on air without authorization. As a response, Orellana submitted a request of inapplicability of article 36 B of the General Telecommunications Law No. 18.168 on the grounds that he believed there was a constitutional incompatibility between the punishment of unauthorized use of the radio spectrum and the right to freedom of expression protected by article 19.12 of the Chilean Constitution.

The defense argued that article 36 B. of Law 18.168 violates the principle of proportionality because the the punishment is not an effective remedy to fulfill the purpose sought (to ensure the correct use of the radio spectrum) and thus constitutes and excessive restriction on the right to freely seek and receive information and ideas. Orellana Galarce stated that this provision additionally violates article 13 of the American Convention on Human Rights. He further claimed that the end sought could be achieved with less intrusive means such as fines, confiscation of equipment and social services. Therefore, the restriction on the exercise of the right to freedom of expression was disproportionate in light of the benefit of the lawful purpose pursued. As there was no evidence of any harm to others or of the public order, the legitimate purpose of preventing unauthorized use of the radio spectrum, could not take precedence over the right to freedom o f  expression [p.3]. The defense added that the provision also restricts other human rights such as the right to equality before the law and the due process of law given the disproportionality of the sanction imposed.

The Public Ministry contended that the correct use of the radio spectrum is a right that must be protected by the State. This could be guaranteed through sanctions such as the one under the General Telecommunications Law.

Decision Overview

The main issue before the Constitutional Tribunal was whether article 36B’s criminalization of the unauthorized use of the radio spectrum was incompatible with the constitutionally protected right to freedom of expression.

The Constitutional Tribunal acknowledged that the radio spectrum is a public good that requires regulation in regards to its access and use. However, the sanction of imprisonment imposed with the purpose of regulating the use of the radio spectrum is excessive and irrational [p.7].

The Court held that a very restrictive remedy (imprisonment) was being used in order to preserve the adequate functioning of the radio spectrum. The Court highlighted that behaviors such as the one at stake needed to be excluded from criminal sanctions since they should only be used as a last resort [“ultima ratio”]. Furthermore, it stated that there are other means available to accomplish the same goal, such as the imposition of a fine.

In addition, the Court argued that everyone has the right to inform and to freely establish media. For the Court, although these rights are not absolute, it imposes on the legislative branch a greater burden regarding the degree of severity of the law [p.9]. The Court noted that under article 19 No.12 of the Chilean Constitution everyone has “the freedom to issue an opinion and to inform, without prior censorship, in any form and by any means,” and that “every natural or legal person has the right to establish, edit and maintain magazines and newspapers”. For the Court, even though the said provision does not mention radio, it is reasonable to assume that it also enjoys constitutional protection.

In conclusion, the Court declared that the sanction of imprisonment imposed against Francisco Orellana should be deemed disproportionate and unconstitutional, thereby violating the procedural justice guaranteed in article 19 No. 6 of the Constitution.

Judges Carlos Carmona Santander and Gonzalo García Pino issued a dissenting vote. For the judges, the law provision does not contravene the equality before the law on the grounds that the existence of a public procurement process to obtain the operation or exploitation of telecommunications services guarantees equal access to a scarce good, such as the use of the radio spectrum. The judges further argued that there is no violation of the principle of proportionality when establishing a crime for operating radios without authorization because the State must prevent inappropriate interference to the radio spectrum, otherwise the proper use of the frequencies could not be guaranteed. Finally, judges Carmona Santander and García Pino added that the freedom of opinion and information are not violated with the criminal sanction because no prior censorship is established.