Access to Public Information, Defamation / Reputation, Press Freedom, Privacy, Data Protection and Retention
Municipal President of Acambaro v. General Director of the Newspaper “La Antorcha”
Closed Expands Expression
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The Supreme Court of Chile heard on appeal the case of journalists and producers with a television news program. These journalists and producers faced criminal and civil charges filed by a doctor whom they had recorded, without her consent, while she was providing allegedly fraudulent medical certificates. The Court overturned the lower court’s judgment convicting the journalists and instead acquitted them of the crime of “violation of privacy.” The Court had to determine whether a journalist may, by virtue of the right to information, secretly record and then publicly disclose a conversation in which he or she took part, with the purpose of exposing misdeeds that were committed by an individual and are of public interest. The Court began by analyzing whether there was an unlawful infringement of the right to privacy. In this regard, it stated, that the presumption of privacy disappears when it is revealed that a crime or infraction has been committed that is of public interest. In short, the Court said that journalists do not commit the crime of unlawful invasion of privacy by recording and disseminating a conversation with a private individual responsible for providing health care, in which this individual reveals, without knowing that the conversation is being recorded, the commission of a crime or infraction.
A team of journalists with a news program on the “Chilevisión” network conducted an investigation into the provision of fraudulent medical certificates. As part of their investigation, two journalists posed as patients and asked psychiatrists to provide them with medical certificates for diseases that they did not have. The journalists recorded the medical visits in which they were given the medical certificates, and the recorded videos were broadcasted on the news program of the “Chilevisión” network. A psychiatrist who appeared in the videos filed criminal charges against the journalists for the crime of violation of privacy, because they had filmed the medical visits that took place in her office without her consent.
The trial judge who heard the case convicted the program’s journalists and producers of the crime of violation of privacy and sentenced them to 61 days imprisonment, as well as a monetary payment for the pain and suffering inflicted. The Court of Appeals upheld the ruling. The Supreme Court, on appeal, overturned their conviction. The journalists argued before the Court that there could not have been a violation of privacy, since there was never an unauthorized intrusion into the plaintiff’s life nor a broadcast of a private conversation or communications. They argued that for “a conversation to be private, at a minimum it is necessary for two people to interact and for each person to have reason to believe their statements in the conversation will remain confidential, maintaining the confidentiality established by the participants.” [Judgment of Reversal, p. 2]. In the case at hand, one of the participants in the conversation had no interest in maintaining secrecy. Furthermore, they argued that professional secrecy did not apply because it was the medical professional who had the duty to maintain professional secrecy, not the patient, who may freely disclose his or her medical history. Finally, they argued that “any event, conversation, or document whose disclosure affects the public interest is not private.” [Judgment of Reversal, p. 3]. They stated that when balancing the right to information and the right to privacy, the right to information must prevail due to the “public interest” involved in the information, “the nature of the individuals involved, and the accuracy of what was revealed.” Regarding civil compensation, the plaintiffs considered that the trial judge was wrong to convict them, given that the news story was undeniably of public interest and the accuracy of the information disclosed had been proven. In that regard, they asserted that the judgment failed to apply the rules established by exceptio veritatis (the truth exception).
The Supreme Court held for the defendants and reversed the judgment of the Court of Appeals.
The Court had to determine whether a journalist may, by virtue of the right to information, secretly record and then publicly disclose a conversation in which he or she took part, with the purpose of exposing misdeeds that were committed by an individual and are of public interest.
The Court began by analyzing whether there was an unlawful infringement of the right to privacy. In this regard, it stated, first, that the presumption of privacy disappears when it is revealed that a crime or infraction has been committed that is of public interest. In the case at hand, the Court found that although there was not “proof of the commission of a crime” by the psychiatrist, her actions at a minimum involved “a violation of professional ethics.” These actions became matters of public interest because unfounded medical certificates were given out, to the detriment of other people paying into the health system, and because medical misconduct took place, which is incontrovertibly of interest to all.
According to the Court, for an unlawful invasion of privacy to take place, “the person who violates [this right] by intrusion into a private space or by disseminating the information thereby obtained must be a third party other than the person to whom the alleged victim revealed facts and waived his or her expectation of privacy, because this person may not be punished for the victim’s lack of discretion.” [Judgment of Reversal, p. 9]. In the Court’s opinion, given that the recordings were made by one of the participants in the conversation, this individual also owns the content of the recordings and thus may lawfully disseminate them.
Therefore, the Court considered that there was not an infringement of the psychiatrist’s privacy, and thus the elements required for the crime of violation of privacy were not present. The Court thus concluded that the trial judge had erred in his ruling on the offence committed, and proceeded to reverse the contested judgment.
Subsequently, in the Court’s new judgment, it explained that the journalists at no time used concealment or deception to enter the doctor’s office, and that what they found could have been disclosed by any other patient who had a medical visit with the psychiatrist. Furthermore, taking into account the arguments of the Judgment of Reversal, the Court explained that the disseminated information was concerned with the practice of the plaintiff’s profession and was not part of the private sphere, given that the journalists did not address facts related to her “sexual, marital, family, or home life.” [New Judgment, p. 3].
In short, journalists do not commit the crime of unlawful invasion of privacy by recording and disseminating a conversation with a private individual responsible for providing health care, in which this individual reveals, without knowing that the conversation is being recorded, the commission of a crime or infraction.
Therefore, the Court acquitted the defendant and dismissed the claim for compensation under civil liability, because without criminal liability there could not be civil compensation.
The judges Dolmestch and Pffeifer stated in their dissenting opinion that, in their view, the journalists’ conduct did fit the definition of the criminal offense described in Article 161 of the Penal Code, because they entered a closed space and recorded a private conversation, which was also broadcast without the consent of all the individuals involved.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands the international standards on information of public interest developed in judgments like the IACtHR case of Mémoli v. Argentina. Indeed, while in Mémoli v. Argentina the IACtHR seemed to argue that only information about public officials or the conduct of these officials is of public interest, the judgment in question expands the concept of “public interest” to private individuals engaged in activities that could involve public interest. The judgment protects the right to record and disseminate information about the commission of crimes or infractions that may have an effect on the public, even if the perpetrator of these actions is unaware that he or she is being recorded.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Supreme Court is the highest court in Chile and its decisions are binding.
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