Case Summary and Outcome

The Inter-American Court of Human Rights (IACtHR) decided that a conviction of members of the indigenous Mapuche community in Chile – including the prohibition to own, direct or manage social media – violated the right to freedom of thought and expression. Consequently, the Court ordered Chile to annul the criminal convictions and remedy the victims. In 2001 and 2002, amid social conflict between indigenous Mapuche communities and the Chilean State, a series of fires took place that caused material damage. They were attributed to members, traditional authorities and/or activists for the rights of the Mapuche indigenous people, and criminal proceedings were opened against eight people. The defendants were sentenced to prison with other accessory penalties for committing crimes of terrorism. Among the accessory penalties was the ineligibility to own, direct, or manage social media. The IACtHR determined that this was disproportionate restriction to the right to freedom of expression under the American Convention on Human Rights (ACHR), based on the  principle of proportionality of criminal punishments and the chilling effect disproportionate penalties had on the exercise of the right.

Facts

At the beginning of the 2000s, there was high social conflict in southern Chile, marked by “numerous claims, demonstrations and social protests by members, leaders and organizations of the Mapuche people” [para. 79]. They sought the resolution of claims “fundamentally referring to the recovery of their ancestral territories and respect of their use and enjoyment of those lands and their natural resources” [para. 79]. These tensions were aggravated by the increase of private forest exploitation since the end of the 20th century.

In light of these events, between 2001 and 2002, a series of fires against property and threats to burn property took place. While these actions did result in material damage, they did not affect the life or physical integrity of any person [para. 74]. Criminal proceedings were opened against eight people, all of them members, traditional authorities, and/or activists for the rights of the Mapuche indigenous people. The Chilean Antiterrorist Law (Law 18.314) was applied to these people, and they were prosecuted for the crimes of “terrorist arson” and “threat of terrorist arson”.

The defendants were sentenced to prison. In addition, accessory penalties of disqualification from exercising their political rights were imposed on them. Three of the defendants were disqualified from the exercise of activities related to the issuance of information and opinions in the media. More specifically, “they were imposed the accessory penalties provided for in Article 9 of the Political Constitution of Chile, with which ‘they were, among other things, disqualified for a period of fifteen years […] to exploit a media company or to be a director or administrator of the same, or to carry out functions related to the issuance or dissemination of opinions or information ‘” [para. 373].

Decision Overview

The IACtHR sought to decide whether the accessory penalty imposed on three Mapuche leaders, consisting of disqualification for fifteen years “to exploit a social media or to be director or administrator of the same, or to perform in the functions related to the issuance or dissemination of opinions or information” [para. 373] violated the right to freedom of expression. Additionally, it assessed whether the main conviction for the crimes of terrorism created a chilling effect on the exercise of the right to freedom of expression [para. 376]. Beyond freedom of expression, the Court also made reference to different human rights violations that occurred during the judicial processes.

The IACtHR referred to the right to freedom of thought and expression, acknowledged under Article 13 of the ACHR as a right “of broad content” that protects “the right to seek, receive, and impart ideas and information of all kinds, as well as receiving and knowing the information and ideas disseminated by others ” [para. 371].

Specifically, the right to freedom of expression had both an individual dimension and a social dimension. The individual dimension referred to the right of each individual to use any means to freely disseminate ideas, information and opinions and to make them available to the largest audience. Under the Court’s analysis, “a restriction to the outreach [of those ideas, information and opinion] represents directly, and to the same extent, a limit to the right to express oneself freely” [para. 372]. On the other hand, the social dimension of freedom of expression referred to society’s collective right to freely receive information and opinions, and to know the thoughts of others. In the Court’s opinion, both “dimensions are of equal importance and must be fully and simultaneously guaranteed” [para. 371].

In this case, the IACtHR highlighted that the penalties imposed affected both the individual and social dimensions of the right to freedom of expression. It argued that the accessory penalties were imposed on Mapuche leaders, who held a significant social, spiritual, and political role in their communities.

“As traditional authorities of the Mapuche indigenous people, Mr. Norín Catrimán, Mr. Pichún Paillalao and Mr. Ancalaf Llaupe [three of the defendants] held a decisive role in communicating the interests and leading the political, spiritual, and social direction of their respective communities” [para. 375]. Correspondingly, the restrictions under analysis violated the individual and social dimensions of their right to freedom of expression.

The IACtHR stated that the accessory penalties were also a violation of the right to freedom of expression because they were based on a criminal law that was not proportionate. The Court further explained that, in accordance with the principle of proportionality in criminal law, the State’s response to illegal conduct is limited by a proportionality test that balances the affected legal interest and the guilt of the perpetrator of the offense. By virtue of this principle, the penalties must take into account the nature and gravity of the illicit acts. In the case, the Court determined that the accessory penalty imposed against the defendants was excessive and contrary to the principle of proportional punishment [para. 374].

Additionally, the IACtHR referred to the “chilling effect on the exercise of freedom of expression that may cause fear of being subjected to an unnecessary or disproportionate criminal or civil sanction in a democratic society, which can lead to self-censorship of those subject to sanctions and of other members of society” [para. 376]. The Court highlighted that the prosecution and conviction of the accused under crimes contemplated in the anti-terrorist legislation could deter other members of the Mapuche community from exercising their right to freedom of expression since the legislation could create among them a “reasonable fear” of being prosecuted and convicted for participating in social protests [para. 376].

Based on the above considerations, the IACtHR determined that the accessory penalty placed an undue restriction on the exercise of the right to freedom of thought and expression, and, therefore, Chile violated the right to freedom of thought and expression protected under Article 13.1 of the ACHR, in relation to Article 1.1. Moreover, the disproportionate punishment based on the anti-terrorism legislation could have generated a chilling effect on the members of the Mapuche community “based on the particular effects that the improper application of the Anti-terrorist Law had on them” [para. 376]. The Court ordered Chile to annul the convictions.