Case Summary and Outcome

The Supreme Court of Chile ordered several media to update a story about a surgeon. In 2009, a surgeon was sentenced to 61 days in prison and the payment of compensation because a patient died as a result of medical malpractice. Several media outlets published information about the case in their digital portals. The doctor served his sentence and paid the corresponding compensation. In 2018, the doctor requested the elimination of the articles from the online media outlets. The request was rejected by the media and, subsequently, by the Court of first instance. The Supreme Court, upon hearing the case, considered that the information published by the media was of public interest. In order to achieve a balance between the right to information and the right to honor, the Court ordered the media to update the article.

Facts

In 2009, a surgeon was convicted of a misdemeanor due to medical malpractice that resulted in the death of a patient during cosmetic surgery. The doctor was sentenced, among others, to  61 days of imprisonment and to the payment of compensation for damages. The newspaper El Mercurio and Copesa, of the newspaper La Tercera and La Cuarta, wrote articles about the doctor’s conviction that are available in their online portals. The doctor complied with the sentence and subsequently, in order to “reintegrate himself into his activities and social life,”[1] he got his criminal records expunged.

In 2018, the doctor requested the media outlets to take down the online news articles about his conviction. The portal Emol (of the newspaper El Mercurio) denied the request and the media outlets belonging to Copesa did not respond to the request.

Consequently, the doctor decided to file a remedy of protection [recurso de protección] before the Court of Appeals of Santiago. The doctor considered that the publications, still available online after 9 years of the events, violated his right to honor enshrined in Article 19 (4) of the Constitution. He claimed, the publications “seriously damage[d] [his] personal and professional prestige” and made “his reintegration into the workforce impossible.”[2] Likewise, he considered that there are no countervailing rights that justify this harm.

The plaintiff considered that the ‘right to be forgotten’ could be defined as “the legal basis that allows certain past information not to be disseminated when they are capable of causing more harm than good.”[3] He considered that, although the ‘right to be forgotten’ is not legally enshrined in Chile, it is found in the legal system thanks to the jurisprudential recognition of the Courts.

El Mercurio considered that the publication was true to the facts and that the doctor has already fully and successfully reintegrated into his professional life. It considered that the facts that support the claim are false since the doctor’s honor has not been affected. Both El Mercurio and Copesa stressed that the articles were published under the public’s right to receive information and opinions in the exercise of the freedom to inform and issue an opinion, guaranteed in Article 19 (12) of the Constitution. Copesa indicated that this right is also guaranteed in Article 13 of the ACHR. Both El Mercurio and Copesa indicated that the information published is of public interest and that the public has the right to know about it. El Mercurio stated that it is wrong to consider that the information is no longer of public interest because time has passed.

Finally, El Mercurio pointed out that the “right to be forgotten” is a very recent doctrine that emerged in comparative law and has not been recognized legislatively or constitutionally in Chile. In this regard, Copesa said that in contrast to the “right to be forgotten”, in Chile the legislation promotes “vividly the maintenance of press archives so that they persist in time, indefinitely, in order to allow their conservation and consultation by the public.”[4] It noted that Law 19.733 on Freedom of Opinions and Information and Exercise of Journalism established the so-called “legal deposit” that forces the media to send a number of copies to the National Library for its conservation.

The Court of Appeals of Santiago rejected the remedy of protection [recurso de protección] filed by the doctor. The Court considered that the published information is of public interest. It noted that in Chile there is no law that establishes the so-called “right to be forgotten” and, on the contrary, there is legislation that promotes the maintenance of press archives.

The doctor filed an appeal before the Supreme Court of Chile.

[1] Chile, Court of Appeals of Santiago, Rol No.74876-2018 (2018), p. 1.

[2] Id., p. 2.

[3] Id., p. 3.

[4] Id., p. 10.

Decision Overview

The Supreme Court indicated that the fact that an information is available in the historical archives of the media does not, by itself, affect the rights guaranteed in the Constitution. However, it specified that it is necessary to bear in mind that according to article 16 of the Press Law, people have the right of reply or to correct or rectify the record as the case may be. In this way, the rights to privacy and honor of those who have been mentioned in any publication are guaranteed.

The Court stated that the information published regarding the surgeon is of public interest. Accordingly, the Court considered that it is necessary that the publications include “all the necessary elements of judgment” for readers to have access to “correct and complete” information [p.2]. In that sense, for the Court it is necessary to try to achieve the greatest possible balance between the right to inform and the respect for the honor of people.

Consequently, the Court considered that, given the time elapsed since the occurrence of the events, it is necessary to complement the publications by including all of the ensuing or succeeding developments. Therefore, it reversed the ruling of the Court of Appeals and ordered the media to update the publications in such a way as to include that the surgeon complied with the sentences imposed and paid the civil compensations.