Global Freedom of Expression

Bordachar v. Canal 13

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Audio / Visual Broadcasting, Press / Newspapers
  • Date of Decision
    September 23, 2010
  • Outcome
    Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    Rol No. 1463-2009
  • Region & Country
    Chile, Latin-America and Caribbean
  • Judicial Body
    Constitutional Court
  • Type of Law
    Civil Law, Constitutional Law
  • Themes
    Access to Public Information, Defamation / Reputation
  • Tags
    Civil Defamation, Exceptio veritatis, Honor and Reputation, Heightened Scrutiny, Privacy Tort, Subsequent liabilities

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Case Analysis

Case Summary and Outcome

The Constitutional Court of Chile reviewed an action seeking non-applicability due to the unconstitutionality (acción de inaplicabilidad por inconstitucional) of the article of the Civil Code which required that civil 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 found for the plaintiffs and ordered the civil trial judge not to apply the article in the case in question.


Several members of a family sued a television network for broadcasting a program in which one of the family members was accused of committing fraud through a family business. The plaintiffs asked the civil judge, as their primary claim, to order payment of compensation for the crimes of defamation and slander. As their alternative claim, they requested payment of civil damages for committing an unintentional tort. In the first instance, the judge rejected the primary claim because there was not a criminal judgment convicting any of the members of the TV network of the crimes of defamation and slander. It also rejected the alternative claim, because there was a limitation to the application of the action for compensation for allegedly defamatory statements. In the opinion of the judge, the request was inadmissible given the provisions of Article 2331 of the Civil Code, which states: “Defamatory accusations against a person’s honor or reputation do not entitle the person to file a suit for financial compensation, unless there is proof of consequential damages or loss of income that can be perceived in monetary terms. However, even if this is the case, the financial compensation shall not take place if the truth of the accusation is proven.” (Not in italics in the original text. The second part of the cited provision was not reviewed in the judgment.)

The plaintiffs challenged the aforementioned judgment. Before the appeal could be decided in the second instance, the plaintiffs brought before the Constitutional Court an action seeking non-applicability due to unconstitutionality of the part of Article 2331 of the Civil Code in italics above. They requested that this provision should not be applied to the case in question. According to the plaintiffs, the Constitutional Court had already repeatedly ruled the article in question to be inapplicable on previous occasions.

The Constitutional Court ordered the appeals judge in the civil case not to apply the provision in question, considering that, in the case at hand, the requirement set forth in that provision could lead to a violation of the plaintiff’s rights to honor and reputation.

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].

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

The Court makes significant observations regarding the importance of the right to freedom of expression in a democratic society and the considerations that must be addressed when assessing alleged pain and suffering. However, in its analysis, the Court does not take into account international standards regarding the subsequent imposition of civil liability, in particular with respect to the need to use the standard of actual malice to assess the subsequent imposition of liability due to statements on matters of public interest. In applying this standard, the IACmHR has stated that in cases in which the victim is a government official or an individual who has voluntarily become involved in matters of public interest, it is essential to demonstrate that the person who disseminated the information intended to inflict damage, was fully aware of the falsity of the news, or acted with gross negligence in efforts to determine the truth (Principle 10 of the IACmHR Declaration of Principles on Freedom of Expression). Likewise, Inter-American case law clearly states that one of the requirements to impose subsequent liability is that it is “necessary for the rights whose protection is being sought to be clearly harmed or threatened, and the burden of proof is on the party requesting the limitation. Unless there is clear and arbitrary harm to the right of another, the subsequent imposition of liability is unnecessary” (IACmHR, Allegations before de Inter-American Court in the case Ricardo Canese v. Paraguay. Transcribed in: IACtHR., Case Ricardo Canese v. Paraguay. Ruling August 31 of 2004. Series C No. 111, par. 72 f).

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Chile, STC, Rol No. 1513-2009
  • Chile, STC, Rol No. 1185-2008
  • Chile, STC, Rol No. 943-2007
  • Chile, STC, Rol No. 790-2007
  • Chile, Law No. 19.733, 2001. Art. 40
  • Chile, Law No. 18.825, 1989
  • Chile, Law No. 12.927, 1958
  • Chile, Law No. 20.084, 2005
  • Chile, Law No. 19.423, 1995

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision of the Constitutional Court of Chile has a binding effect as it is the court which interprets and determines the constitutionality of the laws.

Official Case Documents

Official Case Documents:


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