Case Summary and Outcome

The Inter-American Commission on Human Rights concluded that the Chilean State had censored a book and violated the author’s right to freedom of expression. Francisco Martorell’s book “Diplomatic Impunity” discussed the circumstances that led a former Argentine ambassador to leave Chile. Although the book was published in Argentina by Editorial Planeta, a Chilean court banned its entry, distribution, and circulation in Chile. The Commission found that the Chilean court’s decision violated Article 13 of the American Convention on Human Rights and that prior censorship is not a legitimate restriction on the right to freedom of expression.

Facts

In April 1993, Mr. Francisco Martorell published a book titled “Diplomatic Impunity” in Argentina with the publisher Editorial Planeta. The book was about, among other things, the circumstances that led a former Argentinian ambassador to abandon Chile.

The book was scheduled to start selling in Chile the day after its launch in Argentina. However, a Chilean businessman filed a “protection remedy” before the Santiago Court of Appeals and argued the book injured his right to privacy. The court issued a “no action order” that temporarily prohibited the entry, distribution and circulation of the book in Chile while the case was resolved on the merits [par. 1-2].

At a later time, several people filed complaints against Martorell for the crimes of defamation (injuria) and false imputation of a publicly actionable crime (calumnia).

Decision Overview

The Inter-American Commission on Human Rights (ICHR) had to resolve whether the Chilean’s court decision to prohibit the entry, circulation and distribution of the book violated freedom of expression under article 13 of the American Convention on Human Rights (ACHR).

The Commission reaffirmed that freedom of expression involves both the right to express ideas and thoughts and the right to receive them. In this sense, when a person’s individual right to express him or herself is restricted, it also affects society’s right to receive the information.

The Commission indicated that article 13.2 of the ACHR allows certain restrictions to be placed upon the exercise of freedom of expression, and stipulates the legitimate limits and the requirements for establishing restrictions. In this sense, this right can only be restricted through the imposition of subsequent liabilities that are provided for by law and are necessary to ensure the objectives established in the Convention.

The Commission recalled that protecting “the rights or the reputation of others” is a legitimate purpose according to the Convention. However, regarding the rights of privacy, honor and dignity set forth in Article 11 of this instrument, “the organs of the State cannot interpret the provisions of Article 11 in a manner that violates Article 13, which prohibits prior censorship” [par. 72].

In effect, the IACHR highlighted that the Convention clearly stipulates that prior censorship is completely incompatible with the full enjoyment of the rights protected by this instrument. The Commission stressed the ACHR is the only human rights instrument containing this prohibition, which shows the importance the Inter-American system has placed on freedom of expression. In this sense, the IACHR has said “[w]hen legislating the protection of honor and dignity referred to in Article 11 of the American Convention -and when applying the relevant provisions of domestic law on this subject- States Parties have an obligation to respect the right of freedom of expression.  Prior censorship, regardless of its form, is contrary to the system that Article 13 of the Convention guarantees” [par. 74].

In May 1993, the Court of Appeals granted the judicial remedy brought by the Chilean businessman and affirmed the measure that “prohibited the entrance and commercialization of the book in Chile” [par 4.]. This decision was appealed to the Supreme Court but the appeal was rejected.

In the case under review, the Commission considered the decision to ban the entry, circulation and distribution of the book Diplomatic Impunity (Impunidad diplomática) in Chile was contrary to Article 13 of the ACHR. For the Commission, this constituted an of act prior censorship and, therefore, and a was not a legitimate restriction on the right to freedom of expression.