Case Summary and Outcome

Facts

Decision Overview

The Court had to determine whether a Civil Code provision was proportionate: the provision requiring that actions for compensation arising from alleged defamatory statements only be upheld if the plaintiff proves that there have been consequential damages or loss of income.

The Court began with an analysis of the concepts at stake in the case. It clarified that while a person’s honor (honra) is “other people’s consideration or opinion of an individual” [par. Fourteenth], honor (honor) is the internal opinion that individuals have of themselves. The Court explained that, like any right, the right to honor has limits, one of which is freedom of expression. On this point, the Court stated that the right to freedom of expression is one of the pillars of democracy, because it “makes possible a debate of ideas [and] an exchange of viewpoints.” [par. Seventeenth]. The Court explained that the right to freedom of expression must protect both the content and the form in which expression takes place, and therefore “people may freely choose the place, the means, and the circumstances in which they express themselves.”

According to the Court, given the importance of the two conflicting rights in this case, the tension between them must be “carefully” resolved through a proportionality test. Accordingly, the Court proceeded to review the proportionality of the provision that limited protection of the right to honor in civil proceedings by requiring proof of monetary consequential damages or loss of income. In the Court’s opinion, in order to solve the problem at hand, it is necessary to “first, analyze whether the restriction of the right to honor seeks to achieve a legitimate objective; second, determine whether the provision is a proper and appropriate manner to achieve that objective; and finally, clarify whether the differentiation is reasonable vis-à-vis the importance of the proposed objective.” [par. Twenty- second].

In conducting its proportionality test, the Court found that in order to determine whether the provision seeks to achieve a legitimate objective, it is necessary to examine the considerations that informed the legislature when the article was drafted. The Court explained that when the provision was enacted, the rights to honor and reputation were not enshrined in the Constitution. In the view of the Court, these considerations originally justified the fact that the legislature prioritized freedom of expression by preventing a possible disincentive to the exercise of this freedom.

After having established the purpose of the provision, the Court proceeded to consider whether the rule is an “appropriate” manner to achieve this objective. In this regard, it found that the provision is appropriate because “being held liable for pain and suffering caused by the exercise of freedom of expression c[ould] operate as a disincentive or a form of self-censorship with regard to the exercise of this freedom.” [par. Thirty-first].

Nevertheless, the Court found that there are less harmful measures to achieve the objective pursued by the provision, such as “establishing evidentiary standards or standards of judicial certainty that ensure that compensation for mere defamatory accusations do not ultimately undermine freedom of expression.” [par. Thirty-second].

According to the Court, requiring a test for loss of income or consequential damages in all cases, without exception, would remove adequate legal protection in cases in which unlawful expressions may produce demonstrable and unjustified pain and suffering. [par. Thirty-fifth]. Accordingly, the Court held the provision to be disproportionate. In this regard, the Court stated that not applying the provision in question has a decisive impact, because “the natural effect of applying Art. 2331 of the Civil Code is precisely to remove legal protection from attacks on the right to honor that are not specific crimes subject to prosecution under criminal law. While injuries to other rights that do not constitute crimes, either, entitle the person to compensation for all economic damages and pain and suffering caused, according to the general rule set out in Art. 2329 the Civil Code, defamatory accusations attacking the honor or reputation of a person do not entitle that person to compensation for pain and suffering, which is naturally the kind of damages produced by these types of attacks, and usually the only kind of damages caused.” [par. Thirty-eighth].

Based on the above, the Court found for the plaintiff and ordered the appeals Court not to apply Article 2331 of the Civil Code to the case in question.

Judge Mario Fernández Baeza joined the majority opinion but did not share some of the considerations presented in the judgment. In contrast to what was stated in the decision, he believes that “only in exceptional cases may freedom of expression interfere with the right to honor of the individual and his or her family. Because this only applies to exceptional cases, the exercise of freedom of expression is severely restricted with respect to anything that harms the moral integrity of the individual and the family.” [para. Twenty-fifth]. In addition, he states that “an individual’s honor may be especially harmed if this is done publically and with a mass effect, which is the impact of modern means of social communication.” [par. Twenty-sixth] The judge believes that the necessary consequence of the above reasoning is that the Court should not have restricted its ruling only to the first part of Art. 2331, but also to the second part, which includes the truth exception. According to the judge, the truth or falsity of a statement should not matter because “the truth of the accusation does not eliminate its defamatory nature if the statement harms the honor of an individual and his or her family or if the statement is made in order to dishonor, discredit, or disparage this person or his or her family.” [par. Twenty-sixth].

On the other hand, the Judges Marisol Peña Torres and Enrique Navarro Beltrán issued a dissenting opinion, on the ground that the request should have been rejected for procedural reasons.

Finally, Judge Francisco Fernández Fredes joined the dissenting opinion of Judges Peña Torres and Navarro Beltrán, arguing that there were procedural defects in the request. However, with respect to the substantive aspect of the action, Judge Fernández Fredes also argued that pain and suffering has no monetary manifestation, and therefore the legislature’s requirement is correct, because there are other “efficient ways to adequately protect a good as immaterial as the honor of a person.” [par. Thirty-fifth]. He gave this example: “imposing on the perpetrator of the offense the obligation to publish, at his or her own expense, the full text of the judgment of conviction, could be understood as a form of compensation to remedy the victim’s reputation in the most appropriate way.” [par. Thirty- fifth].