Significant progress in the legal arena was achieved during this period, and this progress will benefit the work of the media. The amendments were delayed by the opposition of some members of Parliament, which turned into a serious threat that could only be stopped by the media and the National Press Association.
After an arduous process, which even included a presidential veto, numerous amendments to the Political Constitution of 1980 were passed. In relation to the media, the most important amendments are the following:
1. Amendment of Article 19, item 4. This article had previously been worded as follows: Article 19. The Constitution guarantees all people: 4) Respect for and protection of their private and public lives, as well as their individual honor and that of their families. Any infringement thereof that is committed through a media outlet, and which consists of a false accusation or unjustifiably harms or discredits a person or his or her family, shall constitute an offense and shall be punished according to the law. However, the media outlet may defend itself by proving the accuracy of the accusation in the appropriate court of law, unless such accusation constitutes libel per se against a private individual. Furthermore, owners, publishers, editors, and managers of the media outlet in question shall be jointly and severally liable for the appropriate damages.
This article first provided for the protection of a persons public life and, secondly, established the offense of defamation, which was left to be defined by a law that was never passed. The Senate removed the second subparagraph, but the Chamber of Deputies added two new subparagraphs that, paradoxically, reinforce the protection of ones public life. The leader of the Senate, the minister of the interior, and the minister of government affairs subsequently succeeded in having these removed and got the president use his veto power to send back a new version of the article, which was ultimately approved. The new version of the article states: Article 19. The Constitution guarantees all people: 4) Respect for and protection of their private and public lives, as well as their individual honor and that of their families.
Thus, the offense of defamation was eliminated, and the joint responsibility of owners and publishers was removed from the Constitution.
However, the bill on protection of privacy, which is currently pending before the Constitution, Legislation, Justice and Regulations Committee of the Senate, was amended for the worse by the Chamber of Deputies. The bill will be taken up again following the elections and the Parliaments summer recess.
2. New Article 8:
The original article had been repealed by an amendment in 1989. A new law was introduced that radically changed the system for gaining access to public records. This issue had been addressed by the so-called Transparency Act, which amended the Law of General Guidelines for State Administration. The Transparency Act stated that certain matters could be declared confidential or classified. It established a legal procedure whereby an interested party could gain access to public records in the event that such access were arbitrarily denied, but it left the implementation of this system up to a subsequent decree. The criteria for declaring certain records or documents to be classified or confidential were established by Decree No. 26 of January 28, 2001 of the Ministry of Government Affairs. As a result of this decree, more than 60 decisions were issued that made it virtually impossible to gain access to information. Various public interest organizations sought to have these regulations revoked, and Senators Hernán Larraín and Jaime Gazmuri introduced a bill on freedom of information on January 4, 2005.
Several studies on freedom of information in Chile recommended that this matter be addressed through the Constitution. Thus, the new Article 8 was passed as follows:
Those who hold public office must strictly adhere to the principle of probity in all of their actions.
The actions and decisions of government entities are of public record, as are the foundations and the procedures thereof. However, only a qualified quorum law (i.e., a law passed by absolute majority) can declare that a given record is classified or confidential, when publicity would compromise the duties of such an entity, individual rights, national security, or the national interest.
The passage of this article entails the repeal of: (a) Articles 13 and 14 of the Constitutional Organic Law of General Guidelines for State Administration, DFL 1 (19.653) 2000; (b) Decree No. 26 of January 28, 2001; and (c) all resolutions issued by government entities on the issue of confidential and classified records. As a result, all records and decisions are now open to the public with the exception of those already declared confidential or classified by a qualified quorum law. Furthermore, In the event that the administration denies access to such records and decisions, the interested party may seek recourse in the courts.
These two constitutional amendments have been in effect since August 26, when they were published in the Diario Oficial.
Repeal of the insult law (against insulting a public official) which had been demanded in Chile and abroad was stymied for several years by the insistence of some members of Parliament that it be linked to the simultaneous passage of a law on protection of privacy. Finally, Law 20.048 was published in the Diario Oficial on August 31. This law amends the Penal Code and the Military Justice Code to eliminate the insult law from Chilean legislation. Articles 263 and 265, which established definitions of insult itself, were repealed. Article 264 which described insult as threatening and disturbing order in legislative sessions and in court, or as threatening members of Parliament for opinions expressed in session, judges for their rulings, or authorities in the course of their duties was replaced by a new article that sanctions attacks on such authorities. Article 268, which provided for sanctions against anyone who causes a disturbance in the office of an authority, was removed. As for the Military Justice Code, Article 276 which defined the offense of improper sedition in extremely broad and outdated terms was replaced by a new article that provides for sanctions against anyone who in any way induces or incites military personnel to disorder, indiscipline, or nonfulfillment of military duties.
Still pending is a bill on protection of privacy that, as currently worded by the Chamber of Deputies, warrants serious objections. While legislators had felt this bill was necessary in order to repeal the insult law, it is still making its way through Congress. In the process, major disagreements between the Chamber of Deputies and the Senate have come to light.
Judges have continued to order that some defendants not be identified, and their photographs not published, in ordinary criminal trials. The most recent such case was in Rancagua, south of Santiago, where a priest was accused of molesting some disabled children. At the beginning of the proceedings, the judge ruled that his name or picture may not be published. The newspaper El Rancagüino disobeyed this order, but no measure was taken against it perhaps because the prosecutors who are responsible for opening cases against media outlets have also been opposed to such court decisions.
Some journalists have been targeted through legal action:
On February 4, 2004, a student was found dead near the Loncomilla River. Her ex-boyfriend, a lawyer from the city of Linares, filed a complaint against Juan Carlos Espinoza, editor of the Linares newspaper El Lector; Jaime Troncoso, a reporter for Televisión Nacional Red Maule; and María Ignacia Rodríguez and Catalina Plaza Squella, journalists from of the magazine Cosas. He alleged that they had published, without his consent, photographs showing him with the deceased. On September 21, 2005, the judge stated that the case would be definitively dismissed on October 19, since the prosecutor concluded that no crime had been committed.
Journalist Ana Verónica Peña and Juan Walker, the former editor of La Nación, were sued for libel in relation to an article titled El rostro civil de la tortura (The civilian face of torture), published on December 5, 2004, which accused various people of participating in such practices. The trial is in its early stages.
Francisco Martorell, editor of the newspaper El Periodista, was tried for statements made by an interviewee which were deemed libelous. The defense appealed the judges ruling, and case is pending before an appeals court.
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