Defamation / Reputation, Political Expression
Nieto Marquez v. Las Igualadas
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The Inter-American Court of Human Rights (IACtHR ) found that Chile violated the right to freedom of expression, under Article 13 of the American Convention on Human Rights, of Mr Carlos Baraona Bray —an advocate for environmental causes who was convicted by national courts for accusing a politician of supporting deforestation. Carlos Baraona Bray was criminally convicted by domestic courts for defamation after accusing a Chilean senator of having exercised political pressure on public authorities to allow the indiscriminate deforestation of the larch tree. For the IACtHR, statements or opinions on environmental issues and the role of public officials deserve special protection in a democratic society because they are of public interest. On this basis, the Court held that the sanctions imposed on Baraona Bray had a chilling effect by inhibiting him from expressing opinions on matters of public interest and constituted an indirect means of restricting freedom of expression in its individual and social dimensions. In turn, the Court held that Article 417 of the Criminal Code, which was used to convict Mr. Baraona Bray in Chile, did not comply with the requirement of “legality” established in Article 13 of the American Convention on Human Rights, since it did not clarify the prohibited conduct, as it refers to overly broad concepts, such as accusing someone of vice or immorality.
The larch tree is a native Chilean species protected by Supreme Decree No. 490, which prohibits its indiscriminate logging. As recognized by both parties, the indiscriminate logging of the larch tree was a matter of public interest in Chile.
Carlos Baraona Bray was a Chilean lawyer advocating for environmental law issues. In the context of many accusations against public officials for violating Supreme Decree No. 490, Mr Baraona Bray said in various media outlets that a Senator from the Los Lagos Region (Senator SP) was exercising political pressure on public authorities to promote the indiscriminate logging of the larch tree.
Senator SP denied the accusations in the media and filed a criminal lawsuit on May 14 of 2004 against Mr Baraona Bray for the crimes of defamation and serious slander with publicity, according to Articles 412, 416, 417, and 423 of the Chilean Criminal Code (CCC), which were aggravated, according to Article 12(13) of the CCC, since the damaging comments were made to undermine the public authority of Senator SP.
On June 22, 2004, the Court of Guarantees of Puerto Montt declared Mr Baraona Bray guilty. The Court found that his comments were not protected by the right to inform as they were damaging and could not prevail over Senator SP’s honor. The Court sentenced him to 300 days of imprisonment, a fine, and a suspension to occupy any public office positions.
Mr Baraona Bray filed an appeal seeking annulment before the Supreme Court of Chile. The Court rejected the appeal, stating that “freedom of information did not include the transmission of false facts, as the Constitution did not protect the right to misinformation or insult.” [para. 62]
In 2005, after the period of the criminal penalty had elapsed, the Court of Guarantees discharged Mr Baraona Bray. In 2006, Mr Baraona Bray appeared on national television talking about the criminal procedure he went through. Afterwards, Senator SP lodged another criminal complaint, against Baraona, for defamation, which was dismissed by the Court of Guarantees in 2007.
On 4 March 2005, the Public Interest and Human Rights Clinic of the Universidad Diego Portales filed a petition before the Inter-American Commission on Human Rights on behalf of Mr. Baraona Bray. In 2019, the Commission issued Merits Report No. 52/19 and notified the State of its findings and recommendations. On 11 August 2020, the Commission submitted the case to the Inter-American Court of Human Rights, noting that the State had not complied with its recommendations.
The Inter-American Court of Human Rights analyzed the international responsibility of Chile regarding violations of freedom of expression. The main issue before the Court was whether the criminal convictions issued by the courts of Chile, against the applicant —after accusing a senator of exercising political pressure on public authorities to promote the indiscriminate logging of the larch tree—, violated his right to freedom of expression. In order to analyze this, the Court considered the importance of freedom of expression in a democratic society, especially in relation to environmental matters.
The Commission stated that, although Mr Baraona Bray’s comments could be considered offensive, they did not incite violence, thus rejecting the possibility of imposing subsequent liabilities on him. For its part, the state of Chile argued that both Chilean Courts established that the comments of Mr Baraona Bray were unfounded and could not be weighed against the honor of Senator SP.
Following the advisory opinion on La Colegiación Obligatoria de Periodistas (Arts. 13 y 29 Convención Americana sobre derechos humanos OC 5/85 and the case Moya Chacón v. Costa Rica by the ICtHR, the Court recalled that freedom of expression is a paramount issue in a democratic society, especially when it comes to public interest matters. This freedom allows citizens to exercise democratic control of the public administration, which in turn promotes, as said in Herrera Ulloa Vs. Costa Rica and Moya Chacón, accountability of the public officials’ work.
The Court stated that “SLAPPs” (strategic lawsuits against public participation) are an abuse of judicial process, which has to be regulated by States to allow for an effective exercise of freedom of expression. The Court concluded that “the recourse of public officials to the courts to file suits for defamation or libel, not with the aim of obtaining a rectification, but rather to silence criticism of their actions in the public sphere, constitutes a threat to freedom of expression.” [para. 91]
Following this argument, the Court emphasized the importance of freedom of expression on environmental issues, as it represents a mechanism for society to influence political decisions on these matters. To support this idea, the Court quoted its Advisory Opinion 23/17 and several European Court of Human Rights cases —Grimkovskaya v. Ukraine, No. 38182/03. 21/07/2011, Dubetska and others v. Ukraine, No. 30499/03. 10/02/2011, Taşkin and others v. Turkey, No. 46117/99. 10/11/ 2004, and Eckenbrecht and Ruhmer v. Germany, No.25330/10. 10/06/2014.
Moreover, the Court also relied on the jurisprudence set forth in La Última Tentación de Cristo (Olmedo Bustos and others) v. Chile and Palacio Urrutia v. Ecuador to underscore that freedom of expression entails an individual dimension —the right to use any appropriate means to disseminate opinions, ideas, and information and to reach the widest possible audience—, and a social dimension —the collective right to know this information.
Lastly, the Court examined to what extent restrictions can be imposed on freedom of expression. Article 13(2) of the American Convention of Human Rights establishes that freedom of expression is not an absolute right, as subsequent liabilities can be imposed due to the abusive exercise of this right in order to ensure the protection of the rights or reputation of others.
For restrictions on freedom of expression to arise, the Court recalled, quoting Advisory Opinion AC-6/86 9/5/86 Serie A, No. 6, Moya Chacón, and Tristán Donoso v. Panama, three criteria must be met—i.e., the restriction must (i) be established by law, (ii) fulfill an objective according to the Convention, and (iii) be necessary in a democratic society.
When analyzing the second criterion, the Court determined that freedom of expression must be weighed against the honor of the affected person by the expression, following Mémoli v. Argentina and Moya Chacón. To this end, it is paramount for states to examine if the contested expressions are about a public interest matter, where more caution should be taken before issuing restrictions on freedom of expression.
To determine if there is a public interest at stake, states have to consider the concurrence of three elements: whether (a) the person involved is a public official; (b) the person involved was exercising their duties as a public official in the disputed facts; and (c) the issue has public relevance. This is particularly relevant as public officials are more exposed to scrutiny for their functions, as the Court established in Herrera Ulloa and Moya Chacón.
In this particular case, the Court established that “access to information on activities and projects that may affect the environment are matters of clear public interest, and therefore enjoy special protection due to their importance in a democratic society.” [para. 108]
Furthermore, the Court noted that in this case, the Senator was of course a public official and that the comments of Mr Baraona Bray constituted without a doubt an expression about a public interest matter. The Court noted that the sanctions imposed on Mr Baraona Bray had chilling effect on him, as he was inhibited to express opinions on public interest issues and to participate in public debate. Therefore, the Court held that “the application of the criminal offense of serious insult in the case under analysis constituted an indirect means of restricting freedom of expression by affecting the individual and social spheres” [para. 121] of freedom of expression.
The Court concluded that using criminal law to impose responsibilities on declarations made on public interest matters would affect, either directly or indirectly, freedom of expression and the accountability of public officials regarding their duties, which is contrary to the American Convention on Human Rights. Nevertheless, the Court remarked that a discourse protected by public interest can generate responsibility in other legal regimes such as civil liability, and that states should create alternative mechanisms different than criminal law to provide reparations when the honor of public officials is affected.
The Court determined that Chile was responsible for the violation of Articles 13(1) and (2) —freedom of expression— of the American Convention of Human Rights.
The Court then proceeded to analyze the lack of legality of the restrictions to freedom of expression imposed by the Chilean state.
The Commission alleged that the criminal law applied in this case did not establish clear parameters that would make it possible to foresee the prohibited conduct and its elements. The state said that the Commission’s argument was vague, as it considered that the Criminal Code was precise in the conducts it sought to punish.
The Court recalled the cases Kimel v. Argentina and Castillo Petruzzi v. Perú, where it was stated that any limitation or restriction to the freedom of information shall be established by law in a clear and precise way, so as to ensure that these are not left to the discretion of the public authorities. The Court concluded that Article 417 of the Criminal Code, used to convict Mr Baraona Bray, did not reach that standard, as it does not clarify the prohibited conduct, since it refers to overly broad concepts, such as accusing someone of a vice or lack of morality. Consequently, Chile violated the principle of legality established in Article 9 of the American Convention of Human Rights, in relation of Articles 1(1) and (2) and Article 13, in prejudice of Mr Baraona Bray.
For reparations, the Court ordered the State to adopt, in a period of six months, the necessary measures to ensure that a notation appears in the judicial file of the case against Mr Baraona Bray, indicating the international responsibility of the state of Chile before the Inter-American Court of Human Rights.
Moreover, the Court ordered, as a measure of satisfaction, that the state publishes in a period of six months, the summary of the decision in a national journal and in a major news outlet, and the complete judgment on the Judicial Branch’s website.
As a non-repetition guarantee, the Court ordered the state to adopt legislation, within a reasonable time, related to the classification of the crimes of defamation in accordance with the standards established in this decision, especially imposing alternatives to criminal law that still protect the honor of public officials. The Court also ordered the adoption of programs, in a period of one year, to train public officials on the rights to access to information and public participation in environmental matters, especially on the jurisprudence of the IACtHR and Advisory Opinion 23/17.
The Court also ordered the state to pay Mr Baraona Bray the sum of USD$60,000 for material and immaterial damages, and USD$20,000 for legal expenses.
Concurring and dissenting votes
Judges Ricardo C. Pérez Manrique, Eduardo Ferrer Mac-Gregor Poisot and Rodrigo Mudrovitsch issued a concurring vote, underlining the importance of the rationale adopted by the majority in this decision. The judges considered that this decision introduced one of the most important advancements of the Inter-American Court regarding freedom of expression in the last few years. They underscored that criminal proceedings to protect the honor of public officials are incompatible with the American Convention of Human Rights since they create a chilling effect on the debate on issues of public interest.
Judges Humberto Antonio Sierra Porto and Nancy Hernández López issued a concurring and partially dissenting vote regarding the violation of the principle of legality. They argued that in cases of an abusive exercise of freedom of expression, subsequent liabilities cannot be accepted as exceptional. The legal system, the judges said, must have sufficient protections to establish responsibilities in these cases to protect the principle of effective legal protection. Accordingly, they stated that the principle of legality is not violated by the fact that Chilean criminal law holds some level of abstraction. In their opinion, the position adopted by the majority entails an absolute decriminalization of any conduct against the honor of public officials.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Inter-American Court of Human Rights expanded freedom of expression by holding the state of Chile internationally responsible for the violation of Mr Baraona Bray’s rights as a result of his criminalization for exercising his freedom of expression on an issue of great public interest. The Court recognized that speech on environmental issues deserves special protection as a matter of public interest in a democratic society. Furthermore, the Court also reaffirmed the legal standard established in previous cases requiring states in the region to decriminalize defamation and slander, in line with an international trend towards alternative systems to address possible tensions between the right to freedom of expression and other rights.
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