Report to the Midyear Meeting
March 28 - 30, 2008
Several recent legal initiatives have affected press freedom.
The Congress has passed the Freedom of Information Law, and the only remaining requirement for it to go into effect is the approval by the Constitutional Court. Earlier efforts were disappointing, because there were so many exceptions in the bills that they became the rule. The current bill did not originate with the government, and it was introduced after the 2005 constitutional amendment stating that “actions and resolutions of state agencies” are public and establishing that “only a law passed with a special quorum can establish secrecy” under certain criteria.
The new law sets out the procedures for access to information and the sanctions for denying it. The most important change is the Transparency Council, a specialized agency empowered to impose penalties, whose purpose is to oversee compliance with the law and defend the right to access to government information.
There are some doubts about the effectiveness of the new law because of its exceptions. While the constitution is unequivocal in requiring a special quorum to keep some information secret, the law is not as strict. It has general provisions that could permit the chief of a public agency to deny information. Worse yet, a provisional article says that it is understood that the legal rules that went into effect before the constitutional amendment comply with the requirement of a special quorum. That is, the old structure of secrecy remains untouched. Also, it permits unlimited secrecy concerning national defense and certain aspects of international relations. Polls by government agencies will not be released until the end of that administration.
The membership of the Transparency Council will decide the importance of this law. It could facilitate access to information or just as well turn out to be another disappointment.
On March 4, two legislators introduced a bill to amend the Civil Code, the Penal Code and the law on freedom of information and the practice of journalism. The purpose is to “improve protection of the image and good name of the individual who faces constant attacks,” especially concerning judicial information. The proposal would introduce a type of objective responsibility to make it easer to classify the offense of injuria, or insult, and open the way for the respective damages. It is an initiative that, while based on the defense of human dignity, aims to limit the practice of journalism.
On January 12, the Talca Appeals Court upheld, with modifications, a lower court ruling of August 7, 2006, ordering Empresa Periodística El Centro S.A. to pay 20 million pesos in damages to a woman who had accused a man of raping her. The company identified the victim in its report about the verdict. The decision was based on an article of the law that prohibits publication of the identity of victims of sex crimes. The newspaper’s defense argued that according to the Code of Criminal Procedure, oral trials are public unless they are closed at the request of a party for good reason, which the plaintiff had not done. The Appeals Court ruling acknowledged the newspaper’s argument, but said that situation “is valid only with respect to everything that expression applies to, that is, to the participants and spectators at the trial.” This case has demonstrated the serious inconsistencies between the press law and the Code of Criminal Procedure. During the long process of debating the press law, it was frequently pointed out that it was necessary to make it conform to the new criminal procedure, which was also being prepared. But Congress ignored the warning.
The Special Committee on the Media established by the Chamber of Deputies a year ago, meets from time to time and hears testimony from various people, especially about the concentration of media ownership and its possible effect on press freedom. It has not yet issued its final report which was due six months ago.