Case Summary and Outcome

The Supreme Court of Chile held that a video posted on YouTube by Mr. Johannes Kaiser Barents von Hohenhagen —in which he referred in a derogatory manner to the victims of crimes against humanity committed by the last Chilean dictatorship and cast doubt on the existence of those crimes— constituted hate speech not protected by the right to freedom of expression, and ordered its removal from all social networks. Ms. Leila Irina Nash Sáez—the sister of Michel Nash Sáez, a victim of the military dictatorship— filed a constitutional complaint against Johannes Kaiser to have the video removed from YouTube arguing that it violated the right to honor of her brother and family, and insulted the memory of the victims of the last dictatorship. The petitioner claimed that her brother was kidnapped, imprisoned, tortured, and murdered during the last Chilean dictatorship and that these events had been proven in a trial for crimes against humanity. For his part, the defendant argued that the message he conveyed in the contested YouTube video was protected by his right to freedom of expression. The Chilean Supreme Court held that the defendant’s video constituted “hate speech” that displayed an aggressive treatment towards victims of serious crimes in Chilean history, while questioning the existence of these crimes against humanity. Thus, the Court ordered the defendant to remove the video from all social networks.

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Facts

On February 9, 2021, Mr. Johannes Kaiser Barents von Hohenhagen published a video on the video-sharing platform YouTube in which he vigorously defended the military—and those who committed crimes against humanity during the last Chilean dictatorship—and criticized some of the victims of those crimes.

Ms. Leila Irina Nash Sáez, the sister of Michel Nash Sáez—a victim of the military dictatorship—, filed a constitutional complaint against Kaiser arguing that the aforementioned video seriously violated her and her family’s right to honor. The petitioner stated that her brother was kidnapped, imprisoned, tortured, and murdered during the last Chilean dictatorship. She added that her brother’s body is still missing, but that it has been judicially proven that he was executed along with others and that their bodies were thrown into a mass grave. She stressed that these events were judicially demonstrated and recognized by Chilean courts, which categorized these acts as homicide, kidnapping, and crimes against humanity.

The petitioner explained that the contested video, in which the acts of the criminals against humanity were defended, was a grave insult to the relatives of the victims and a violation of the right to honor and reputation under Article 19(1) and (4) of the Chilean Constitution. In light of this, the petitioner requested the removal of the February 9, 2021 video from all social networks, a public apology from Kaiser, and that the account of the judicially recognized crimes suffered by Michael Nash be published in a national newspaper, explaining that they constitute crimes against humanity.

Kaiser held that the petition was moot because the video was no longer in circulation—at the time the petitioner’s complaint was filed—on YouTube. Moreover, the respondent argued that he did not mention Mr. Nash, that his comments were protected by the right to freedom of expression, and that they referred to a historical context of public interest in Chile.

On September 23, 2022, the Santiago Court of Appeals upheld the constitutional complaint filed by the petitioner on behalf of her disappeared brother, and ordered the respondent to remove the contested video. The Court held that the right to freedom of expression is fundamental in cyberspace and on social networks, but that it may collide with the right to honor “when it is violated by dishonorable statements, in the face of which the affected party has limited possibilities to demand and obtain a prompt correction.” [para. 3] In this regard, the Court concluded that the comments made by the respondent in the YouTube video affected the honor of the petitioner’s brother, as it was not possible to respond or reply.

Kaiser appealed the decision to the Supreme Court of Chile. According to the respondent, the Santiago Court of Appeals made a mistake by ordering him to remove a YouTube video that is no longer in circulation and is not available on any social network. Likewise, he argued that the message disseminated in the video was protected by the constitutional right to freedom of expression (Article 19, Paragraph 12 of the Chilean Constitution) which prohibits prior restraints. Furthermore, he stated that his political opinions did not violate the petitioner’s right to honor. He stated that he had the right to “participate in active, firm and challenging debates, without censorship.” [para. 3]

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Decision Overview

The Supreme Court of Chile had to decide whether the decision of the Santiago Court of Appeals, which ordered the respondent to remove a video from YouTube—which presented a vigorous defense of persons who had committed crimes against humanity during the last military dictatorship in Chile, and which questioned the existence of those crimes— violated the right to freedom of expression.

The petitioner argued that the respondent’s video violated the right to honor of her disappeared brother—who was a victim of the crimes of the last Chilean dictatorship—as well as hers and her family’s honor. She emphasized that the denigrating statements made by the respondent insulted the memory of her brother and cast doubt on the commission of crimes against humanity against him, which were duly proven by the Chilean judicial system.

The respondent, for his part, maintained that the message of the video was protected by the right to freedom of expression in the context of a heated debate of public interest in Chile. In addition, he claimed that at no time he mentioned the petitioner’s brother.

First, the Chilean Supreme Court stated that the right to freedom of expression and information is guaranteed by Article 19(12) of the Chilean Constitution. In addition, the Court cited the “Declaration on Freedom of Expression” of the Inter-American Commission on Human Rights, which states that “freedom of expression, in all its forms and manifestations, is a fundamental and inalienable right inherent to all persons. It is also an indispensable condition for the existence of a democratic society.” [para. 5]

On the other hand, the Court recalled that Article 19(4) of the Chilean Constitution also guarantees respect and protection to the private life and honor of individuals and their families. It added that Article 12 of the United Nations Universal Declaration of Human Rights and Article 11 of the American Convention on Human Rights also protect the right to honor and reputation.

The Court then held that the analysis of the Santiago Court of Appeals—which ordered the removal of the video— was correct since the respondent’s statements in the contested video constituted “a violation of the honor of the petitioner and her murdered brother.” [para. 6] The Court added that freedom of expression must be exercised without violating the fundamental rights of others, especially when those persons do not have the opportunity to rebut the statements presented.

The Court also considered that the respondent’s message was “hate speech” that displayed a derogatory and aggressive treatment towards victims of serious crimes. The Court defined hate speech as “any form of expression that propagates, incites, promotes or justifies hatred based on bigotry,” citing Anne Webber’s Handbook on Hate Speech (2009).

Subsequently, the Court held that hate speech should not be confused with opinions or comments protected by freedom of expression. To it, hate speech was an abuse of the right to freedom of expression that has harmful consequences both for those to whom it is directed and for society in general.

The Court added that hate speech undermines democratic coexistence. Thus, the Court rejected the respondent’s argument that his speech was protected by freedom of expression and that it contributed to an active and challenging debate. On the contrary, the Court concluded that the respondent’s statements contradicted the historical facts that had been judicially established by Chilean courts.

For all of the above reasons, the Court dismissed Kaiser’s appeal and upheld the decision issued by the Santiago Court of Appeals. It also ordered the defendant to take all necessary measures to have his message removed from all social networks.

Concurring and dissenting opinions

Judge Jean Pierre Matus issued a dissenting vote. According to Matus,  the Chilean Constitution provides a specific remedy when the exercise of freedom of expression may offend or affect the honor of a person. This remedy, Matus noted, is the right to rectification. For this judge, courts should not protect the honor of individuals by interfering with freedom of expression through direct or indirect censorship of past or future publications. The judge noted that the petitioner could exercise her right to request the respondent to correct the video if she considered it was defamatory to her and her family.

For these reasons, Judge Matus considered that the judgment of the Santiago Court of Appeals should have been overturned and the constitutional complaint filed by the petitioner dismissed.

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