CHAPTER IX

RIGHT TO FREEDOM OF OPINION, EXPRESSION
AND DISSEMINATION OF THOUGHT

A. GENERAL ASPECTS

1. Article IV of the American Declaration of the Rights and Duties of Man recognizes that “Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever”. In addition, the International Covenant on Civil and Political Rights, [1] to which Chile is a party, and the American Convention on Human Rights have recognized the right to freedom of thought and expression for every person. [2]

2. For its part, the Inter-American Commission on Human Rights, developing the notion of freedom of expression, has specified that it is “the right to transmit by any means of social communication facts and ideas; but also, on the other hand, such freedom requires the right of every person to receive information without interference of any kind”. [3]

3. Expanding these notions, the Commission added:

The interdependence of the peoples of America requires greater understanding among them, for its effectiveness and freedom of information, ideas and news is indispensable. For achieving the objectives previously mentioned, the means of information should be free of all pressures or impositions, and those using them assume a great responsibility before public opinion and should, therefore, be faithful to the facts.

Freedom of expression is universal and contains within it the idea of the juridical right which pertains to persons, individually or collectively considered, to express, transmit and diffuse their thoughts; in a parallel and correlative way, freedom of information is also universal and embodies the collective rights of every one to receive information without any interference or distortion. [4]

4. One aspect on which the Commission has repeatedly insisted is that freedom of expression cannot be fully exercised if a climate of fear or insecurity, like that generated by prolonged states of emergency, prevails. In such circumstances, the Commission has argued, freedom of expression cannot be authentically exercised nor can citizens be adequately informed; this, in turn, leads to the creation of conditions for the violation of other human rights. [5]

5. Another aspect that should be mentioned in connection with these freedoms and which the Commission dealt with in its First Report on the Situation of Human Rights in Chile is that relating to crimes of opinion. On that occasion the IACHR pointed out that:

Whatever the consequences of actions based on a particular ideology, in any event, and whatever the value judgment merited by that kind of thinking, it is clear that ideologies cannot be eliminated the way an epidemic disease or a serious social vice is eliminated, if the basic principles of a representative democratic system of government are to survive.

This deviation from the recognition of freedom of opinion is undoubtedly the result of temporary political circumstances and emotional factors. It is to be hoped that once they have both been overcome, the upholding or disseminating of particular ideas will cease to be punished as a crime. However, it must be noted for now that this has been classified as a criminal act in Chile, for the avowed purpose of “eradicating” a particular conception of society and of the causes of historical change. Undoubtedly we can disagree with that concept, but the only way of eliminating it without paying too high a price is by the appeal to reason and persuasion.

It is inadmissible that, because of the mere fact of upholding and disseminating a certain ideology, a man becomes a kind of “untouchable”, whom it is considered legitimate to deprive of the possibility of working, deny him the free expression of his thought, and even send him to jail. [6]

6. In this chapter the Commission will refer to the legal regulations applicable to freedom of opinion and expression, especially the dissemination of news and ideas by the information media; the situation of the media in practice; the specific restrictions information media in Chile have had imposed on them; and, finally, the effects on society of the restrictions on the above-mentioned freedoms.

B. THE LEGAL REGIME

a. The 1925 Constitution

7. The 1925 Constitution, as amended in 1970, provided for freedom of opinion, expression and dissemination of thought, by guaranteeing all the inhabitants of the Republic, in Article 10:

3. Freedom to express, without prior censorship, opinions, either orally or in writing, through the press, radio, television or any other medium, without prejudice to liability for offenses and abuses that may be committed in the exercise of this liberty in the manner and in the cases as determined by law. Upholding and publicizing any political idea may not constitute a crime or abuse.

Every natural or juridical person who has been offended or alluded to by some information has the right to clarification or rectification without cost, under the conditions determined by law, by the same publicity medium from which the information emanated.

All streams of opinion shall have the right to utilize, under the conditions of equality determined by law, publicity and communications media owned or used by private sources.

Every natural or juridical person, especially the universities and political parties, shall have the right to organize, found and maintain newspapers, magazine, periodicals and radio transmitting stations, under the conditions established by law. Only by law may the system of ownership or operation of these communications media be modified. They may be expropriated only by law, approved in each house by the affirmative vote of the majority of the members present.

The importation of and trading in books, printed matter and magazines shall be free, without prejudice to the regulations and taxes that the law may impose. It is forbidden to discriminate arbitrarily between newspaper, periodical, magazine and other publishing firms, radio broadcasting and television stations in matters relating to the sale or supplying, in any form, of paper, ink, machinery or other work materials, or relating to authorizations or permits that may be necessary for such acquisitions within or outside the country.

Only the State and the universities shall have the right to establish and operate television stations, in compliance with the requirements of the law.

The circulation, shipment and transmittal, by any means, of writings, printed matter and news items that do not infringe upon good morals or propriety are guaranteed. Only pursuant to a law, enacted in the cases provided for in Article 44, No. 12, may the exercise of this freedom be restricted.

8. Article 44 (12) of the 1925 Constitution permitted Congress to restrict freedom of the press “when supreme need for the defense of the State, preservation of the constitutional regime, or internal peace may so demand and only for periods not to exceed six months...”

9. During the life of the 1925 Constitution, legislation guaranteeing free expression of thought, and establishing the corresponding liabilities, both penal and civil, for those who committed acts that that legislation considered criminal, was enacted. [7]

b. The Initial Legislation

10. When the military government took office, the freedoms of opinion, expression and dissemination of thought were de facto severely affected because of the measures adopted. Consistent with the purposes the Government Junta had proposed, information media supporting the government, which had been overthrown, were simply eliminated and their property confiscated or expropriated.

11. Initially, the new Government primarily made use of successive amendments of Law No. 12,927 on Internal Security of the State to exercise more effective control over the various information media.

12. Decree Law No. 559, published in the Official Gazette of July 12, 1974 and amending the Law on the Internal Security of the State, converted acts against the established Government into specified crimes, many of which could only be committed by the mere exercise of freedom of expression or through information media.

13. Decree Law No. 1,009 of May 8, 1975, which consolidates the rules on the definition of crimes against State security, introduced the notion of “misuse of publicity” as one of the ways in which the internal security of the State could be attacked. In this regard, that Decree Law amended Article 16 of the Law on the Internal Security of the State and stipulated that “if through the press, radio or television, any crime is committed against the security of the State, the competent court may suspend the publication of up to ten editions of the newspaper or magazine responsible and the transmissions of the radio broadcasting station or of the television channel concerned for up to ten days”. In addition, the above-mentioned decree law established other penalties such as “the immediate requisitioning of every edition in which any misuse of publicity is manifest” and the seizure “of the printing machines” if specified circumstances obtained.

14. Decree Law No. 1281, published in the Official Gazette of September 11, 1975, went even further and expressly conferred on the Military Chief of the Area in the state of emergency the power:

To suspend the printing, distribution and sale, for up to six editions of newspapers, magazines, pamphlets and printed matter in general and the transmissions, for up to six days, of radio broadcasting stations, television channels and any other similar information medium that broadcasts opinions, news or communications aimed at creating alarm or discontent in the population, that distort the true extent of the facts, or are manifestly false or contravene the instructions given them for reasons of internal order...

15. The above-mentioned Decree Law No 1281 also stipulated that the Military Chief of the Area in the state of emergency could, in the case of repetition, order the take-over and censorship of the respective information media, of their plant and facilities, and that complaints against these measures were to be made by the person affected, within a period of 24 hours from the notification of the measure, to the respective military or naval appeals court, which would decide on the matter in good conscience.

16. It should also be mentioned that under the powers the legislation on internal security of the State confers on the military chiefs of the area during the state of emergency, in March 1977, by means of Proclamation No 107 the Chief of the Area in the state of emergency of the metropolitan region stipulated that the founding, printing, publication, circulation and distribution and marketing in any way of new newspapers and magazines, periodicals and printed matter was to have the prior authorization of that headquarters, as was the importation and marketing of any type of books, magazines or printed matter. That proclamation--which would subsequently be used as a precedent for the limitation of the freedom of expression provided for in transitory provision 24 of the 1980 Constitution--was amended by Proclamation No. 122, which stipulated that, in adopting decisions on the authorizations requested, the Chief of the Area in the State of Emergency should obtain a prior opinion from the National Directorate for Information Media.

17. Up to the date of the approval of this report, most of the provisions arising from the legislation on internal security of the State that limit the exercise of the freedoms of opinion, expression and dissemination of thought are in force, although, as a result of the enactment of the 1980 Constitution, the restrictions on such freedoms have been based on the states of emergency that the Constitution establishes.

C. The 1980 Constitution

18. Article 19 (12) of the 1980 Constitution guarantees all persons:

Freedom to express opinions and to disseminate information without prior censorship in any form and by any means, without prejudice to assuming the responsibility for any crimes or abuses committed in the exercise of such liberties, in conformance with the law which is to be approved by a qualified quorum.

In no case may the law establish a state monopoly over the mass communication media.

Every individual or juridical person offended or unjustly alluded to in some mass communication medium, has the right to have his declaration or rectification gratuitously disseminated, under the conditions determined by law, by the mass communications media in which such information was issued.

All individuals or juridical persons have the right to establish, edit or maintain newspapers, magazines or periodicals, under the conditions prescribed for by law.

The State, those universities and other persons or entities specified in the law, may establish, operate and maintain television stations.

There will be National Council for Radio and Television, which shall be autonomous and vested with juridical personality, which will be in charge of watching over the proper functioning of the communications media. A law of qualified quorum shall determine the organization, the functions and authorities of said Council.

The law shall establish a system of censorship for the exhibition and publicity of motion picture productions and the general norms governing public expression of other artistic activities.

19. However, the provision transcribed above will be in force in its entirety with effect from 1990 and provided that by then no state of emergency has been decreed, which, as examined in Chapter II and will be taken up again below, severely limits the freedoms of opinion, expression, and dissemination of thought.

20. In accordance with transitory provision 24 of the 1980 Constitution, the President may restrict freedom of information as regards the foundation, publication or circulation of new publications.

21. In addition, should the state of emergency be decreed, the President may restrict the freedoms of information and opinion, in accordance with Article 41 (4) of the Constitution.

22. Should the state of siege have been declared, the President might, in accordance with Article 41 (2), suspend the exercise of freedom of information and of opinion and this measure shall not be subject to the remedy of protection.

23. Such a measure, as understood by the Executive, may extend to the closure of the information media the President specifies, while the state of siege is in effect. [8]

24. Finally, as explained in Chapter II and will be examined in Chapter XII, it should be recalled that Article 8 of the Constitution declares it to be an unlawful act, contrary to the institutional order of the Republic “to spread teachings that attack the family, advocate violence or a conception of society, the State or judicial system that is totalitarian in nature or based on the class struggle”. This rule entails a serious restriction on the freedom of dissemination of thought recognized by the American Declaration of the Rights and Duties of Man.

d. The 1980 Law on Misuse of Publicity

25. On May 17, 1984 Law No. 18,313, amending Law No. 16,643 of 1967 on Misuses of Publicity, was published in the Official Gazette.

26. That law increases the penalties for the already existing crimes of libel and defamation and introduces two articles that create new offenses; they have prompted criticisms from jurists and journalists. [9]

27. According to those criticisms, Law No 18,313 discriminates against journalists by imposing considerably more serious penalties on them than on the rest of the citizens in the case of defamation or libel.

28. However, the principal criticism of that law is that it deprives both the information medium and the journalist of the defense of truth by providing in Article 21 A that the person who disseminates, through any of the information media, “the facts of the private life of a person, which cause or could cause material or moral damage to that person, his spouse, ascendants or descendants or brothers and sisters shall be punished by the penalty of medium-term imprisonment in any of its degrees and a fine...”. The accused can defend himself by proving the truth of the statements to the court only in the case of “a false fact relating to the public life” of the person affected.

29. As noted by an outstanding jurist, with respect to the use of the terms “private life” (Article 21 A) and “public life” (Article 21B) this distinction is vague since:

The difference is important because in the case of private life the dissemination is punishable even though the fact is true, and in the case of public life the accusation is required to be false. It cannot be argued that the courts will decide this matter. This is unjust for the judges to whom a legislator who does not know what he is saying transfers the task of legislating. Of course, the application of the law to each specific case is the task of the judge, but the law and not the judge should give the concepts of the law. [10]

30. Also a cause of concern has been the extension of judicial actions against information media and journalists. These actions may be instituted by any person, even though he is not personally offended by the publication or transmission impugned. According to the Journalists Association of Chile, that extension “creates in practice a class action against the information media with respect to articles or chronicles that entail the reporting of reprehensible acts; thus, the persons affected will not even have to bother to go to court in order to punish a bold journalist. [11]

31. Up to the time of the approval of this report, the Commission has not learned that Law No. 18,133 amending the Law on Misuse of Publicity has been applied; but that does not preclude it from sharing the criticisms made because of the way in which it is defending the privacy and honor of persons, which could serve to hide serious improprieties.

C. THE DE FACTO SITUATION OF THE VARIOUS INFORMATION MEDIA

32. With a view to analyzing the exercise in Chile of freedom of opinion, expression and dissemination of thought, it is important to examine the situation during the past 12 years of the various information media; that of the press, radio broadcasting stations, and television channels will be examined below.

a. The Press

33. On September 10, 1973 eleven newspapers--El Mercurio, Las Ultimas Noticias, La Segunda, La Tercera, La Prensa, Tribuna, La Nación, El Siglo, Clarín, Puro Chile and Ultima Hora--were being published in Santiago. With the sole exception of the evening papers--La Segunda and Ultima Hora--all the others had a national circulation. There were also a large number of newspapers in virtually all the towns in the interior of the country.

34. There were weekly, fortnightly, and monthly magazines and a very wide range of them, with publications that reflected virtually all the ideas that prevailed at that time in Chile. Almost all the large political parties had one of those publications and there were no restrictions on their publication.

35. When the military government took office, it prohibited all the publications that were connected with the government that had been overthrown or sympathized with it. This measure especially affected the newspapers El Siglo, Clarín, Puro Chile and Ultima Hora. The property of those publications was expropriated or confiscated under ad hoc decree laws and, in some cases, their owners were prosecuted. [12]

36. In this context, as a result of the climate of insecurity prevailing in the country, which generated marked self-censorship in all the existing newspapers, coupled with serious economic difficulties in view of the fall in their circulation, some newspapers ceased publication, as happened in 1974 with the newspaper La Prensa.

37. In the early years of the military government, prior censorship also prevailed and required newspapers and magazines to submit their material to the Government Press Office before publication. In addition, the press, in general, was limited to imparting only information permitted by the Government, in virtue of the censorship they imposed upon themselves. The magazines Ercilla, Mensaje and Política y Espiritu the last mentioned, which belongs to the Company of Jesus, may be mentioned as exceptions to that behavior.

38. In 1976, the magazine Ercilla suffered its first specific penalty: it was suspended for six editions by the military authority of the metropolitan region pursuant to the powers granted him by Decree Law No. 1,281.

39. In 1977 the journalists of the magazine Ercilla founded a magazine entitled Hoy that led the Government to issue the above-mentioned proclamations Nos. 107 and 122, which with effect from that date required governmental approval for the founding of new newspapers, magazines or periodicals. In the following years the Government prohibited the establishment of new publications on several occasions.

40. Nevertheless, in the course of the following years some dissident publications were established such as the magazine Analysis, initially connected with the Institute of Christian Humanism, under the authority of the Archdiocese of Santiago; the magazine APSI, which from being an organ dedicated to international news and comment would also concern itself with national events; the magazine Fortín Mapocho, which existed before as a commercial publication and was purchased by a group of politicians headed by the former Senator Jorge Lavandero; and the magazine Cauce, belonging to a group of professionals and politicians with social democratic leanings, which began as an intellectual publication only to become one of the principal publications critical of the Government. In some of these cases, the Government tried unsuccessfully before the courts to prevent these publications from appearing as happened in the case of Fortín Mapocho and the magazine APSI.

41. In recent years, as will be studied later, the Government, through various measures, such as the suspension of certain magazines, prior censorship, prohibition of the publication of specified news, judicial complaints instituted against the managing editors of information media, has been creating a situation that seriously affects freedom of expression. Nevertheless, as a result of various circumstances, among which it is necessary to emphasize the role played by the Judiciary in 1983 and 1984, there has occurred--as pointed out by the IACHR--a real, although precarious, expansion of the limits within which the right to freedom of expression is exercised. [13]

42. However, on November 8, 1984, on the second day after the state of siege was declared, Supreme Decree No. 1217 imposed the suspension, while the state of siege lasted, of the periodical Fortín Mapocho and of the magazines Análisis, Cauce, APSI, La Bicicleta y Pluma y Pincel; the last two magazines were devoted to cultural subjects. [14] In addition, under the same decree, prior censorship was imposed on the magazine Hoy while the state of siege was in effect. These measures remain in effect until June 17, 1985, the date on which the state of siege was replace by state of emergency.

43. However, under Decree 324 of June 17, 1985, at present in force under the state of emergency in effect in Chile, periodicals cannot report or comment on the activities of political parties or on terrorist acts.

44. At present, of the newspapers published in Santiago mention may be made of El Mercurio, Las Ultimas Noticias, the evening paper La Segunda--all of which belong to the El Mercurio company directed by Mr. Agustin Edwards--La Tercera, La Cuarta--both belonging to the businessman Mr. Germán Picó--and La Nación, an official newspaper. None of these publications can be considered to be in opposition to the present Government.

45. The same may be said of the many periodicals in the various regions of the country, some of, which have performed a courageous task, despite the limitations arising from the general situation of the country and the economic difficulties they have encountered. [15]

46. With respect to magazines, excluding specialized magazines, it is necessary to add, in addition to such magazines as Análisis, APSI, Cauce and Hoy--all opposition magazines--such news magazines as Ercilla and Qué Pasa and Cosas, the last-mentioned being especially devoted to feature stories and interviews. In addition, because of their concern for the topic of human rights, mention must be made of the magazine Mensaje and Solidaridad, the last mentioned belonging to the Vicaría de la Solidaridad of the Archdiocese of Santiago.

b. Radio Broadcasting Stations

47. A few hours after it took office, the Military Government closed all the radio stations connected with, or related to, the government that was overthrown and confiscated their property. In the case of Radio Magallanes, which did not obey the instructions of the new authorities, the Chilean Air Force bombarded its facilities.

48. The other broadcasting stations of the country were forced to transmit only information issued by the new authorities. Direct supervision of information was maintained in all the radio broadcasting stations during the early days of the military government.

49. Subsequently, the radio stations that continued to operate did so within the framework of the legislation and instructions issued by the new Government.

50. In April 1974, Radio Presidente Balmaceda, belonging to the Christian Democratic party, which had been declared in recess by the Government Junta, became the first information medium to be directly punished for transmitting information considered to be negative by the authorities. That radio station was closed when it broadcasted a homily of Cardenal Raill Silva Henriquez containing criticisms of the state of human rights. That radio station was again closed on five other occasions until 1977 when the Government dissolved the Christian Democratic Party and the station ceased to exist.

51. In January 1978, Radio Cooperativa Vitalicia, the private radio broadcasting corporation with the largest coverage in the country, with nine relay stations in extensive regions of Chile, whose news program used to include criticisms of the state of human rights in particular and of the political and economic situation of the country, in general, was subject to an until then unprecedented administrative measure. On the basis that the system of ownership of radio stations in Chile is subject to the concession of wavelengths by the State to private individuals, the Government argued unsolved administrative anomalies in earlier years and decided to cancel the concession of wavelengths to six of the nine stations of that radio broadcasting corporation.

52. In subsequent years, broadcasting stations that transmitted journalistic programs containing criticisms of the Government--especially Radio Cooperativa Vitalicia and Radio Chilena, the last-mentioned belonging to the Archdiocese of Santiago--were to be subjected to various restrictions of freedom of expression, which ranged from temporary closures to news censorship.

53. At present there are 165 radios broadcasting stations in Chile. Of these, the most important, both because of their audience and their ability to reach various points in the country, are Radio Nacional, which belongs to the Government, and the Cooperativa Vitalicia, Chilena, Agricultura, Mineria and Portales radio stations.

C. Television

54. The 1925 Constitution of Chile stated that only the State and the universities would be entitled to establish and maintain television stations. Although the 1980 Constitution added that, in addition to the State and the universities, the “other persons or institutions specified by law could establish, operate and maintain television stations,” during the 12 years covered by this report television has, in practice, been directly or indirectly subject to the exclusive control of the Government.

55. The national television channel, which belongs to the State, is the only one that covers virtually the entire territory of Chile. Its directors are appointed directly by the. A distinguishing feature of that channel has been that it broadcasts only the views of the Government and thus disregards the terms of the General Television Law. [16]

56. As regards university television there are at present four corporations: The Catholic University of Chile, which has the largest network of all the universities; the University of Chile, which has only one channel in Santiago; the Catholic University of Valparaiso, which has two channels, one in Valparaiso and the other in Santiago; and the Universidad del Norte of Antofogasta, which has a regional channel; a large part of its programming comes from the Catholic University of Chile.

57. In Chile, during a large part of the period of the present Government, the universities have been taken over and all their rectors are appointed by the Government (rectores delegados). Although that situation has changed partially in recent years in the case of the Catholic University of Chile and Catholic University of Valparaiso, whose rectors has been appointed by both the government and the ecclesiastic authority, the other universities continue to be under government control and therefore the supreme authority of the university television corporations is subject to government control.

58. The complete control exercised by the Government over television and the exclusion of views that are not in accordance with the official position has led to increasing complaints by several sectors of Chilean society, which would like television to recover the objectives for which it was established, i.e., as stated in Law No. 17,377, to serve as a means of dissemination

to communicate and integrate the country, disseminate knowledge of national problems and ensure the participation of all Chileans in the major initiatives for solving them; to affirm national, cultural and moral values, the dignity and respect of the rights of individuals and of the family; to promote education and the development of culture in all its forms; to give objective information on national and international events and to provide healthy entertainment and ensure the spiritual and intellectual formation of children and youth.

59. That explains why those sectors that is in a position to make criticisms, such as the Roman Catholic Church, have called for informa­tional pluralism in Chilean television. [17]

D. SPECIFIC RESTRICTIONS ON THE FREEDOMS OF OPINION, EXPRESSION AND DISSEMINATION OF THOUGHT

60. The examination of the status of the various information media revealed some of the ways in which the freedoms of opinion, expression and dissemination of thought have been affected. They began, as stated, with the confiscation or expropriation of newspapers, magazines and radio stations belonging to persons or institutions connected with the government that was overthrown on September 11, 1973.

61. During these 12 years, violations of the above-mentioned freedoms have taken various forms, which will be methodically examined in this section, special reference being made to the violations that have occurred during the past six years.

62. Since in Chile there is no newspaper that expresses the views of the opposition, and television is entirely controlled by the Government, such restrictions have especially affected magazines and radio stations. Even so, newspapers like La Segunda have been suspended. [18]

63. In the view of the Commission, the principal forms taken by restrictions on the freedoms of opinion, expression and dissemination of thought in Chile have been the following:

a. Closures and suspensions of mass information media

64. In July 1979, under a decree of the Chief of the area of the state of emergency of the metropolitan region, the magazine Hoy was suspended for two months, without any previous proceedings. The reason invoked for that suspension was that in its last two numbers the magazine had published interviews with two leaders of proscribed political parties living in exile.

65. However, as stated, the most serious violation in this regard has affected the periodical Fortín Mapocho and the magazines Análisis, Cauce, APSI, La Bicicleta and Pluma y Pincel, all of which were suspended, pursuant to the powers of the President under the state of siege, on November 8, 1984.

b. Prior Censorship

66. On March 26, 1984, the Chief of the area in the state of emergency of the metropolitan region directed the magazines Hoy, APSI, Cauce and Análisis, pursuant to Proclamation No. 2, to submit their copy to the authorities before it was printed in order to grant them circulation permits. This measure was rescinded four days later pursuant to another proclamation, but on April 5 of the same year, under Supreme Decree No. 320, the Director of the National Directorate for Information Media (DINACOS) ordered the magazine Cauce to present its material to the Office of the General Secretary of the Government before it was printed. On April 11 similar measures were imposed on the magazines Hoy, APSI, Analisis and La Bicicleta and on April 19 on the periodical Fortín Mapocho.

67. Under the state of siege decreed in November 1984, the magazine Hoy is subject to prior censorship. Before being published, its material must be sent to the National Directorate for Information Media for approval.

c. Prohibition of the Publication of Specified News and Partial Restrictions on Freedom of Expression

68. In March 1984, the Chief of the area in the state of emergency of the metropolitan area suspended the news bulletin of the Cooperativa Vitalicia and Chilena broadcasting stations. The measure was continued for four days in the case of Radio Chilena and ten days in that of Radio Cooperativa Vitalicia.

69. On April 12 1984, the magazine APSI was prohibited from publishing national news.

70. On September 4, 1984, the Cooperativa and Radio Chilena of Santiago and La Voz de la Costa of Osorno were prohibited from transmitting news bulletins and were required to transmit only official information. On September 6, that measure was rescinded in the case of the Chilena and La Voz de la Costa broadcasting stations, and on September 8 in the case of the Cooperativa radio station.

71. On September 8, under Proclamation No. 19, the Chief of the area of emergency of Santiago directed that the magazines Análisis, APSI and Cauce, as well as the periodical Fortín Mapocho, were to be published without illustrations of any kind.

72. On October 24, 1984, under Proclamation No. 22, the restriction was imposed on the news bulletins of Radio Chilena, which was to limit itself to transmitting only advertisements, music and official information from the Government.

73. Proclamation No. 23 of the same date provided that, in the case of the press, news on terrorists acts was to be confined to the inside pages and that only photographs from official sources were to be published. In addition, television channels were to broadcast only pictures delivered by official sources and radio stations were to report this type of event as concisely as possible.

74. On October 28, 1984 Proclamation No. 24 imposed restriction of news on the entire press in that it was to confine information on unauthorized work stoppages or public demonstrations and meetings to the inside pages and to abstain from emphasizing them.

75. On October 29, under Proclamation No. 25 a restriction was placed on the news reports of the Cooperativa Vitalicia and Santiago radio stations, which were to limit them to giving only official information.

76. In addition, during October 1984, provincial information media were affected by similar measures to those applied in the metropolitan region. The offices of the Intendants of Valparaíso, Rancagua and Bío Bío imposed news restrictions on radio broadcasting stations and the press. [19]

77. Under the state of siege, on November 8, 1984 all the information media of the country were prohibited from disseminating information, interviews, comments, statements, paid announcements, feature stories, photographs, illustrations and any other form of expression, relating to events that could directly or indirectly cause alarm in the population, disturb the civic peace, and affect the normal conduct of national activities. The dissemination of all news concerning acts defined as terrorists and topics or actions of political importance was prohibited, with the sole exception of official government handouts.

78. Finally, pursuant to Decree No 5,720 of September 16, 1985, as long as the current state of emergencies in force, the press cannot report on or express opinions on conduct described as terrorist acts or, inter alia, activities, actions or measures of political parties. The Commission must point out, however, that in practice this limitation is not entirely observed by the newspapers and magazines affected. On the contrary, the Commission has had access to diverse publications during the months prior to the publication of this Report which contain a great deal of information about events such as the death of Messrs Guerrero, Nattino and Parada--termed terrorist acts even by the military judge--and as regards activities and measures taken by various political parties to reach a national agreement for the prompt re-establishment of democracy in Chile.

d. Judicial complaints against directors of information media and journalists

79. Another form taken by restrictions on the exercise of freedom of expression has been the frequent complaints the Government has instituted against the managing editors of information media of the opposition. Some examples of this are the following:

80. In September 1983, the Government instituted proceedings against Juan Pablo Cardenas, the managing editor of the magazine Análisis, and against a person interviewed, the political leader Pedro Felipe Ramirez. They were both accused of attempting to subvert the public order but were finally acquitted after spending 27 days in prison. Concurrently, the military judicial authorities instituted proceeding against Cardenas for alleged insults to the Armed Forces in an editorial signed by him.

81. In July 1984, the Government instituted proceedings, for alleged libel of the President, against Emilio Felipe, the Director of the magazine Hoy. The complaint was based on an interview with Enrique Barilari, the parish priest of Viña del Mar, which appeared in that weekly magazine; according to the complainant, statements that constituted an attempt against the organization of the State and libeled the President had been made in the interview.

82. In September 1984, the Government filed injunctions against the managing editors of the magazines Cauce, Análisis, APSI and the periodical Fortin Mapocho accusing them of offenses against the Law on the Internal Security of the State.

83. In all those cases the courts did not uphold the complaints or injunctions presented by the Government. [20]

84. In May 1985, the Government filed an injunction against Renato Hevia, a Jesuit priest and managing editor of the magazine Mensaje, which had not been closed or censored pursuant to the state of siege. The lawyer of the Ministry of the Interior, which filed the complaint, stated that it was based on the articles and editorials published in the last three numbers of the review, which constituted “offenses against several articles of the Law on the Internal Security of the State”. The request for indictment, requested by the Minister of Interior, was denied by Judge Lionel Berand, which decision was confirmed by the 7th Division of the Santiago Appeal Court.

e. Prohibition of the Unauthorized Production of New Publications

85. Under, first, Proclamations Nos. 107 and 122 of 1977 and, then, Transitory Provision 24, the establishment of new publications has been prevented in Chile.

86. In this regard it should be recalled that on October 22, 1979, the Araucaria Publishing House requested the Chief of the Area in the State of Emergency for authorization to publish the magazine Gente Actual. Seven months later it was notified that the authorization had been denied because of an unfavorable report from the National Directorate for Information Media, the content of which was not revealed. General Humberto Gordon, the Chief of the area in the state of emergency, argued that, pursuant to the powers conferred on him by law, he was not obliged to give the reasons for that determination.

87. On October 30, 1979, the Chief of the area of the state of emergency “in view of the reports from the Department of Evaluation of the National Directorate of Communications and of the Ministry of the Interior” prohibited the circulation of the magazine Carnets, a literary magazine, sponsored and prepared by a group of independent intellectuals that had managed to publish its first issue.

88. Up to the date of the approval of this report, the petition from the owners of the magazine Hoy to establish the newspaper La Epoca has not received any response, despite the fact that the petition was filed in November 1982.

f. Restrictions on Foreign Correspondents

89. Although foreign press correspondents have not had to endure the same limitations as their Chilean colleagues, they have been subject to various restrictions on the exercise of their professional activities.

90. In this regard, reference should be made to the expulsion on November 29, 1984 of Anthony Boadle, the UPI correspondent, a British subject, to whom inaccuracies in an article he had not written were attributed. Although ten days later he was authorized to return, the intimidating effect of that measure is evident, especially if account is taken of the frequent calls officials of the. Ministry of the Interior or of the Directorate for Information Media have had made in recent years to foreign correspondents warning them about the news they were sending abroad. Thus, on the same day as Boadle was expelled, the journalists of the France Press Agency were summoned by the Ministry of the Interior so he could inform them of his displeasure with a story the agency had dispatched on the hundreds of candles that had been lit in Chilean homes in protest against the regime.

91. It should also be pointed out that, during the protest demonstrations that took place in 1984, Carabineros confiscated the video film belonging to the television cameramen covering the protest, and destroyed the cameras and photographic material of the accredited photographers. [21]

9. Other restrictions on Freedoms of Opinion Expression and Dissemination of Thought

92. In addition to the above-mentioned restrictions, which have affected information media, mention should also be made of other limitations on the freedoms of opinion, expression, and dissemination of thought recognized by the American Declaration of the Rights and Duties of Man.

93. In this regard, mention should be made of the situation that has affected the importation and distribution of books. In this regard it should be pointed out that the Customs Directorate of Chile, by Exempt Resolution No. 1,761, denied the importation of a re-edition of the book Persona non Grata by the writer Jorge Edwards. That decision was subsequently confirmed both by the pertinent Appeal Court and by the Supreme Court.

94. In addition, the distribution and circulation of the books Lonquén by the jurist Máximo Pacheco and Trayectoria de una Crítica were prohibited. The latter book contains a series of articles and essays which the research workers of the Corporación de Investigaciones Económicas Para América Latina (CIEPLAN) had published in various previously authorized journals.

95. However, the Commission notes with satisfaction that the restriction on the free circulation of the book was subsequently lifted by Exempt Decree No. 262 of 1983 of the Ministry of the Interior, which terminated the requirement of prior authorization that had to be granted by that Ministry for the publication of books in Chile.

96. It should also be pointed out that, under the wide powers it enjoys, the Consejo de Calificación Cinematográfica [22] has prohibited the importation and distribution of several films. These have not only been films dealing with events that allegedly took place in Chile such as “Missing”; Chile is the only state in the Inter-American System in which the film “A Fiddler on the Roof” or television films like “Holocaust” have not been shown, despite the efforts of various Jewish institutions, both Chilean and international.

E. EFFECTS OF THE RESTRICTION ON FREEDOMS OF OPINION, EXPRESSION AND DISSEMINATION OF THOUGHT

97. The description of the Chilean legal system as it relates to the freedoms of opinion, expression and dissemination of thought, the analysis of the status of the various information media, and the various restrictions on the exercise of these freedoms reveal a situation that goes beyond the mere exercise of those freedoms.

98. The importance of effective freedom of expression for safeguarding other fundamental human rights has already been pointed out. Thus the Commission, in the chapter dealing with the right to life, drew attention to the fact that the silence of the press to some extent facilitated the disappearance of persons and that, in contrast, when the Chilean press reacted to such horrendous crimes, it was a factor that helped put an end to the practice in Chile.

99. In addition, the lack of freedom of expression has had very serious material and moral consequences in Chile. In the short term, for example, it has entailed the unemployment of more than 100 journalists, who have been deprived of their only livelihood, which has caused truly dramatic situations. In addition, the closure of some magazines for indefinite periods has caused or can cause extremely serious economic difficulties that may advance their liquidation or ruin their owners.

100. Nevertheless, the major effect of the lack of freedom of expression has been the moral impact by creating in Chilean society distrust of the truthfulness of the news published, which in the future can be an obstacle to the establishment and consolidation of a democratic society.

101. In this regard, the Chilean Association of Journalists, in the above­mentioned letter to the President of the Supreme Court, stated that :

The Government’s policy regarding the media cannot be more harmful. The community, aware that there are topics about which one cannot have an opinion and events that cannot be related, has learned to doubt what is reported and commented, which represents a different way of looking at life and understanding society. The habit of distrust and disbelief has been created and in this climate any effort for the common good is difficult. The educated and informed nation of yesterday is today an indifferent and detached nation which, because it does not have access to a part of the daily events, has become disinterested in knowing about the part it is told about; this reality is reflected in the decrease in the audience of the radio and television news bulletins, and in the progressive fall in the sale of newspapers and magazines. Of course, the loss of trust implies a loss of goodwill; and the two processes adversely affect the peaceful and fraternal coexistence of the entire community.

Journalists are not immune to the moral deterioration we have been talking about; on the contrary, they are its first victims. This happens not only because they have been unjustly identified as responsible for the arcane style used by the media, but also because inevitably they are drawn into accepting that style, although it is repugnant to the professional conscience of most of them. When it is necessary to earn one’s living in what one knows how to do and for which one has studied, a crisis arises in which it is impossible to give precedence to one’s vocation and professional honesty over the need to survive. Just as justice is the ethical value that inspires the work of lawyers, truth is that for journalists; insofar as a system of information that hides, distorts or falsifies the truth is fostered, the fundamental morale of the profession is being destroyed. We say this with regret but this is precisely what is happening to Chilean journalism.

102. In that communication, the Chilean Association of Journalists concluded that the freedom to state opinions and impart information without prior censorship of any kind and by any means, guaranteed by Article 19 (2) of the Constitution, had been virtually abolished in Chile. That conclusion is shared by the Commission.

F. CONCLUSIONS

103. Indeed, the broad discretionary powers the laws and the Constitution confer on the military chiefs of areas in the state of emergency, and on the President himself, to suspend and restrict the freedoms of opinion, expression, and dissemination of thought, have meant that in these 12 years those freedoms have been severely limited and in certain periods even eliminated by such measures as the closure of information media, censorship, prohibition of publishing specified news items and even illustrations, the need for government authorization for establishing new publications, and other restrictions mentioned in this Chapter.

Notes___________________

[1] Article 19 of the International Covenant on Civil and Political Rights states; 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art or through any other media of his choice. 3. The exercise of the rights provided for that in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or public order (ordre public), or public health or morals.

[2] Article 13 of the American Convention on Human Rights states. 1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice. 2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals. 3. The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions. 4. Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence. 5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar illegal action against any person or group of persons on any grounds, including those of race, color, religion, language, or national origin shall be considered offenses punishable by law.

[3] Annual Report of the Inter-American Commission on Human Rights 1980-1981, p. 121.

[4] Ibid, p. 121.

[5] Ibid, p. 121.

[6] First Report on the Situation of Human Rights in Chile (OEA/Ser.L/V/II.34, doc. 21, October 25, 1974), p. 155.

[7] Decree Law No. 425 of 1925; Law No. 15.576 of 1964; and Law No. 16.643 of 1967.

[8] Under Decree Law No. 1.217 of November 7, 1984, published in the Official Gazette of November 8, 1984, the President of the Republic issued the following decree: Article One: With effect from this date the publication of the following magazines: “Cauce”, “Analisis”, “Apsi”, “Fotin Mapocho”, “La Bicicleta”, “Pluma y Pincel”, is suspended. Article Two: While the state of siege is in effect, newspapers, magazines, periodicals and publications in general, radio broadcasting and television stations of the country shall abstain from disseminating information, interviews, comments, statements, insertions, reports, photographs or illustrations and any other form of expression, regardless of its origin, that refers to facts which can directly or indirectly cause alarm in the population, disturb the peace, the normal conduct of national activities or deal with acts defined as terrorist in Law 18,314. Without prior authorization of the Ministry Office of the Secretary General of the Government, they shall likewise abstain from disseminating information, interviews, comments, statements, paid announcements, feature stories, opinions and any other form of expression, regardless of its origin, nature, importance or political scope, without prejudice to the dissemination of official government communiques. Article Three; Notwithstanding the provisions of the foregoing article, the magazine “Hoy” shall be subject to the system of prior censorship, for which purpose it must submit the materials to be published to the Ministry Office of the Secretary General of Government, prior to the date of circulation of the publication concerned. The Ministry shall return those materials within a period of 48 hours from their receipt. Article Four. The Carabineros of Chile and the Chilean Police shall ensure the strict fulfillment of the provisions of this decree.

[9] See, for example, the article of Alfredo Etcheberry “Ley sobre Abusos de Publicidad: Derecho al Silencio, Derecho a la Verdad”. Mensaje, No. 330, July 1984; the statements of Mr. Roberto Pulido, President of the National Press Association and Director of the Magazine Que Pasa, who pointed out that the National Press Association has been a “strong advocate of the repeal of that new legal provision”; and the letter sent by the Board of Directors of the Journalists Association in November 1984 to the President of the Supreme Court, which pointed out the serious effects that law would have for the practice of the profession of journalist.

[10] Alfredo Etcheberry, Mensaje, No. 330, July 1984, p. 307.

[11] Letter of November 1984 from the Chilean Journalists Association to the President of the Supreme Court.

[12] Thus, Carlos Berger, the managing editor of the magazine Ramona of the Communist Party, was summarily shot in the barracks of a regiment in the north of Chile, and Alberto Gamboa and Jose Gomez Lopez, the managing editors, respectively, of the newspapers Clarin and Puro Chile, were detained for lengthy periods.

[13] Annual Report of the Inter-American Commission on Human Rights, 1983-1984, p. 95.

[14] In view of the closing of these media under the state of siege, the journalists that used to work in them founded several publications without requesting Governmental authorization, publications which could only be acquired by subscriptions and whose circulation reached a limited although influential sector in Santiago: Prensa Libre, Carta de Periodistas, SIC, Informativo de Prensa and Entre Amigos.

[15] Among those newspapers mention may be made of the following: La Estrella and La Defensa of Arica; Tarapacá and La Estrella of Iquique; El Mercurio and La Estrella del Norte of Antofogasta; El Mercurio of Calama; La Prensa of Tocopilla; El Atacama of Copiapo; La Opinión del Norte of Illapel; La Provincia of Ovalle; El Dia of La Serena; El Andino of Los Andes; El Trabajo of San Felipe; La Razon of La Ligua; El Mercurio and La Estrella of Valparaíso; El Rancaguino of Rancagua; La Prensa of Curico; a Mañana of Talca; El Heraldo of Linares; La Discusión of Chillan; El Comercio of San Carlos; El Sur and La Crónica of Concepcion; El Diario Austral of Temuco; El Llanquihue of Puerto Montt; La Cruz del Sur of Ancud; El Diario of Aysen; La Prensa Austral and El Magallanes of Punta Arenas.

[16] Law No. 17,377 of 1970, which mentions among its objectives that “television shall not serve any specified ideology and shall respect all the trends that express the thinking of sectors of the Chilean people”.

[17]In the Declaration of Punta de Tralca of December 15, 1983, the Episcopal Conference of Chile stated: “6. The peoples have the right to be objectively informed. Lying, half-truths and misinformation deeply offend human dignity. International pluralism, especially of television, is indispensable for a true democracy. The extension throughout the entire country of various television channels is also urgent.”

In the Declaration of Lo Vásquez of May 18, 1984, the Episcopal Conference of Chile stated: “4. The exercise of freedom is essential for human dignity. Restrictions on freedom may be temporarily necessary but cannot be indefinitely prolonged. Dignity permits man to actively cooperate in the progress of his community. And, however, most Chileans are excluded from the political decisions that affect them and everybody. So that this exclusion may be overcome, we suggest that the State information media, especially television, be further opened to all opinions so that all can hear what the various groups of Chileans that have to live together in this land, are thinking”.

[18] La Segunda was suspended for two editions on June 23 and 24, 1978 and certain television programs, whose content could not be previously examined, were prohibited, as occurred with the program De Profundis of the television station of the Catholic University of Valparaiso, where transmission was prevented of the interviews to be disseminated after the death of former President Eduardo Frei and of the former Minister of Foreign Relations, Oscar Fenner.

[19] Chilean Commission on Human Rights. Report No. 34. State of Human Rights in Chile. October 1984.

[20] That led the Government of Chile, in its observations on the chapter on Chile in the IACHR Annual Report 1984-1984 to state that: “these judgments, already final and complied with by the Government reliably demonstrate that freedom of expression is guaranteed.”

[21] Chile: No News Allowed. The Committee to Protect Journalists, May 1985, p. 23 and 24.

[22] Decree Law No. 679 of October 10, 1974 and Supreme Decree No. 376 of the Ministry of Education of July 1, 1975.