In general terms, the press has carried out its work without major problems, although there have been several threatening legal provisions and bills. Recently, and to complicate things even more, a number of legal cases have arisen whose repercussions could affect journalistic activity.
The concept of contempt is still in force in Chile, as are some provisions on privacy that curtail the freedom to report and restrict access to public sources. This access had been established in law, but the provisions were distorted by the executive branch’s interpretation of the law. Furthermore, case law interpretations of the standards that regulate the press grant priority to the protection of good name and privacy over freedom of expression. In Chile, the application of some articles in the Code governs a system of prior restraint for book publishing, a sort of imprimatur like that in effect four centuries ago.
It has been over a year now since the government pledged to eliminate the concept of contempt from national legislation and sent Congress a bill to this effect. However, legislators refused to debate it unless another bill on the protection of good name and privacy was attached to it to be debated at the same time. In their view, the second bill was necessary because the elimination of the concept of contempt would leave them vulnerable to press reports. The proposal drafted jointly by the government and the press, radio and television associations to meet this parliamentary demand was not accepted by the House of Deputies, which had drafted its own bill. Their bill emphasizes civil compensation and calls for prison sentences for journalists who commit crimes against privacy and good name. The press, radio and television associations have called this “the most serious threat to freedom of the press since the return of democracy.”
While these legislative discussions are taking place, the laws on contempt remain in force, as do some controversial standards that define a crime of violation of privacy.
These standards are precisely the ones that have brought about the most important trials against the press during this period. They involve legal actions taken on two occasions against a TV channel, Chilevisión, for using hidden cameras to verify accusations against some medical doctors and against a well-known judge of the Court of Appeals of Santiago. Both cases are based on the same legal precepts.
The first case refers to a charge that some psychiatrists gave out unjustified certificates of illness, possibly for money. Two of the doctors sued the channel citing Article 161a of the Penal Code, which prohibits the disclosure of conversations, images or events recorded on private premises or places that are not open to the public without permission of the party involved.
Some months later, the same channel received a report that Judge Daniel Calvo, who was in charge of investigating a highly publicized pedophilia case, frequented underground homosexual gathering places. The case had become a public scandal because there were accusations that some legislators were involved in the pedophile network which exploited street children. The accuser, a homosexual who manages one of the meeting places, felt that it was not appropriate for the judge to try such a sensitive case because he lived a double life as a married man with children and was recognized as an exemplary judge while at the same time frequenting homosexual hangouts.
In its zeal to verify the accusation, the channel filmed the accuser while he had a telephone conversation with Judge Calvo during which the judge admitted knowing him and frequenting the gay hangouts. Later, the channel had the accuser visit the judge in his office at the courthouse carrying a hidden camera. During the meeting, the judge admitted that it was difficult for him to handle the case, because, in his words, he “lived in a glass house.” He said he was afraid and was feeling the pressure.
With this information, the channel considered that it was its duty to report the matter to the public and to the courts. Before doing so, the channel’s news director and a reporter met with Judge Calvo. The judge admitted the facts and said he would hand over the case he was investigating to the Supreme Court and make a public statement on the matter. A few hours later, he read a statement in which he hinted in a very ambiguous manner that he had behaved inappropriately. He added that he had turned over the case to the Supreme Court, but said that, in his opinion, revealing that side of his private life was a covert extortion attempt.
Some hours later, the channel reported the information on the midday news show and played part of the tapes of the accuser’s telephone conversation and personal interview with the judge.
On November 7 the Supreme Court decided to remove Judge Calvo from the case and to order him to appear before the judiciary’s Ethics Court. At the same time, it appointed a judge to investigate the crimes the channel may have committed by secretly filming the judge and the possible pressures exerted in the process.
A few days later, the new judge, who was also investigating the accusations stemming from the report on the doctors, ordered the seizure of the channel’s material in a threatening manner that led to a violent raid and the confiscation of master tapes that contained other unedited footage. This could have caused the disclosure of the identity of the accuser and others who are protected legally under the standards of the journalistic confidentiality.
On December 11, the judge in charge of the main case decided to present formal charges against a reporter, a producer and the management (news director, Alejandro Guiller, assistant news director, Patricio Caldichoury, and the channel’s executive director, Jaime de Aguirre) and against the accuser. The judge based her decision on the same standards that had been applied in the case of the doctors.
As a consequence of this decision, Guiller was taken into custody and Jaime de Aguirre was forced to step down from his position as executive director. Guiller could not be released immediately because he was being charged with two crimes, the secret recording and the disclosure of the material. Guiller was not released until the following day, December 12, when the court authorized the judge to release him on bail.
The executive director was forced to resign on January 9, because the law requires that media executives possess all political rights. These rights are suspended if a person is to be tried for a crime with a punishment of more than three years in prison.
The channel’s habeas corpus appeal was unanimously rejected by the Court of Appeals on December 22, and the ruling was upheld by the Supreme Court, also unanimously, on January 6, without considering the basis for the case.
Consequently, a director of a media outlet has been removed from his position solely because he was formally indicted without being convicted. Chile is in the process of changing its criminal procedures, and this requirement will soon expire when the changes take effect. But all the provisions to protect private and public life that require permission of the affected person before publicizing conversations held in private spaces will remain in effect. Those are the provisions that made possible the prosecution of the journalists from Chilevisión.
A few days ago, at the opening of its term, the chief justice of the Supreme Court harshly criticized the press, blaming it for the deterioration of the government’s image. In his speech, the chief justice, tried to set rules for how the press should work, and, in a way, stirred up feelings against it. This could have a strong influence on judges who have to rule on complaints against the press, which occur more and more frequently, probably encouraged by the conduct of judges who oppose press freedom, which is harmful to the free practice of journalism.