In its recent ruling in the Baraona Bray case against Chile, the Inter-American Court of Human Rights addressed, once again, the importance of freedom of expression in the debate on issues of public interest, such as the preservation of the environment and trees millennials, victims of the voracity of unconscious businessmen, as well as unscrupulous politicians who serve as accomplices. Due to its relevance, in the lines that follow we will comment on some paragraphs of this sentence.
Freedom of expression can collide with social interests of special relevance, such as national security, public order, public health, or with the idea we have of public morality. But one of the most frequent conflicts is that of freedom of expression with the right to honor or reputation of people, and that is the case that this sentence deals with.
The conflict between freedom of expression and defamation crimes is an issue that the Court had already examined, and on which it had established a very clear doctrine in favor of the former. When the debate on matters of public interest is involved, the reputation of people has to give way to freedom of expression, as a fundamental component of a democratic society. Temporarily -in the Mémoli case against Argentina, for political reasons of sad memory-, the Court had departed from this sound doctrine. Now, notwithstanding some conceptual errors, the Inter-American Court has once again resumed the course outlined by the American Convention on Human Rights, emphasizing what are the legitimate restrictions to which the exercise of freedom of expression can be subjected.
The case we are discussing has to do with the debate that took place in Chile, particularly in 2003 and 2004, denouncing the felling of the larch, an ancient tree that grows in the Andean and swampy lands of southern Chile. One of the promoters of this complaint was Carlos Baraona Bray, a member of an environmental protection organization. According to statements by Mr. Baraona, this logging -which was prohibited by law- was favored by the actions of public officials who did not stop it, supposedly pressured by a senator whom the ruling prefers to identify simply as SP, and whose identity is not the case reveal here. According to Baraona, Senator SP used his influence “to buy votes.” Feeling aggrieved by such expressions, Senator SP filed a criminal complaint against Carlos Baraona, for the alleged commission of the crimes of slander and serious libel. In his complaint, Senator SP alleged that Baraona’s alleged insults had been uttered “in contempt and insulted by the public authority” that he was invested with, in his capacity as a senator. The corresponding criminal court convicted Carlos Baraona as the perpetrator of this last offense against Senator SP, imposing a sentence of 300 days in prison, a fine of twenty tax units, and suspension from holding public office during the time of the sentence.
An appeal for annulment filed against said sentence was rejected by the Supreme Court of Chile, because -according to its sentence- the Constitution did not protect the right to misinformation or insult, and because the facts narrated “were not reasonably truthful”. It is already dangerous to have to prove the veracity of the information. But opinion does not have to be proven, and sometimes information and opinion are separated by a very fine line. In addition, for the Supreme Court of Chile, it was not the plaintiff who had to prove absolute disregard for the truth, but the defendant who had to prove the veracity of what was communicated as part of the political debate, which is characterized by the crossing of affirmations not always duly verified, and that hover at the limit of what is a simple opinion. In addition, the Chilean Court maintained that the veracity of these affirmations -proffered as part of the political debate- had to be proven, in a criminal trial.
It matters little that, subsequently, the dismissal of the case has been issued. But the mere circumstance that criminal proceedings can be used to punish those who have not proven the veracity of the statements made as part of the political debate is incompatible with the exercise of freedom of expression. This is not a way of establishing subsequent responsibilities, but a form of censorship, which inhibits political debate. The ruling recalls that, in a democratic system, the actions or omissions of the Government must be subject to scrutiny not only by the legislative and judicial authorities, but also by the press and public opinion. In addition, the dominant position held by the Government forces it to exercise restraint when resorting to criminal proceedings, especially when other means are available to respond to attacks and unjustified criticism from its adversaries or the media. . In this sense, the Inter-American Court points out that, if the restrictions on freedom of expression, and the consequent sanctions, are not compatible with the legitimate purpose pursued, a fertile field is created for authoritarian systems to take root. Cuba, Nicaragua and Venezuela know it.
According to the Inter-American Court, the recurrence of public officials who sue for slander or libel, not with the purpose of obtaining a rectification, but with the objective of silencing the criticisms made of their public management, constitutes a threat to freedom of expression. According to the Court, this type of process, aimed at hindering political participation, constitutes an abusive use of judicial mechanisms, which must be controlled by the States, in order to ensure the effective exercise of freedom of expression. It should be remembered that State officials -and particularly those elected by the people- have voluntarily chosen to expose themselves to public scrutiny and criticism. Citing its European counterpart, the Inter-American Court holds that a politician inevitably and consciously exposes himself to close scrutiny of his every word and action, both by journalists and the general public, and that he must show a greater degree of of tolerance, especially when he himself makes public statements that are open to criticism.
The foregoing does not mean ignoring that public officials, like any human being, also have the right to the protection of their honor and reputation; but they have more access to social media than ordinary citizens. If this were not the case, that is what the right of rectification or response is for.
The Court observes that, in addition to responding to a legitimate purpose, the restrictions on freedom of expression must be proportionate to the legitimate purpose that is sought to be protected, in such a way that the sacrifice inherent to it is not exaggerated or disproportionate. In this regard, the Court recalls that the right to rectification or response may be an appropriate means to protect the right to honor of a person who believes that they are affected by inaccurate or offending information. Likewise, the Court warns that, in cases in which a civil reparation proceeds, there must be guarantees against the ordering of compensation that is disproportionate to the damage to reputation.
In the present case, the Inter-American Court determined that Baraona’s statements referred to the illegal felling of larch, an issue that was related to environmental protection and, therefore, constituted a debate of public interest. The Court recalled that freedom of expression is one of the mechanisms for citizen participation in public decision-making that, among other things, may affect the environment; According to the Court, this debate increases the capacity of governments to respond to public concerns and demands, and helps build consensus around such decisions. However, it should be noted that the raison d’être of freedom of expression is not to help build consensus -which, in a pluralistic society, may never be achieved-, but to make possible the frank and open debate of ideas and information. of all kinds, making room for ideas that may be in the minority, and even some that may annoy those in charge. Freedom of expression is not designed to guarantee the dissemination of ideas that coincide with ours, but to ensure the dissemination of the thoughts of those who dare to think something different.
The Court recalls that freedom of expression is the instrument that citizens use to exercise democratic control over the management of public affairs, questioning, investigating, and monitoring the fulfillment of public functions. It is freedom of expression that makes it possible for citizens to participate in the decision-making process and for their opinions to be heard. With it, the transparency of state activities is fostered, and the responsibility of officials in the exercise of public management is promoted. Without freedom of expression, there would be no brake on negligence in the management of State affairs, corruption, and the arbitrary exercise of public power.
The American Convention on Human Rights, like other human rights treaties, guarantees the right of every person to seek, receive, and impart information and ideas.”of all kinds.” However, in an unfortunate paragraph, the sentence we are commenting on maintains that, when freedom of expression collides with the right to honor, it is of vital importance to analyze whether the statements made are of public interest because, in such a case, “the judge must evaluate with particular caution the need to limit (sic) freedom of expression.” In other words, it is taken for granted that, even if it is a matter of public interest, the exercise of freedom of expression could be “limited”. The most dangerous thing is that, after indicating the elements to consider to determine if said expressions are part of the public debate, the Court affirms that “expressions that deal with issues of public interest enjoy of greater protection”, leaving the impression that they are not absolutely immune to any restriction by the State, and suggesting that messages with a non-political content (academic, scientific, literary, religious, artistic, social criticism, commercial, etc.), would not have right to equal protection, or they would not form part of the protected expression. If so, it would have been interesting for the Court to offer some guidance on the circumstances in which freedom of expression, although it is “the cornerstone of a democratic society”, enjoys any less protection, or none.
With despotic regimes there is no freedom that counts, and there is no brake that can prevent tyrants from silencing the political opposition, or critical sectors of civil society. In a dictatorship, the only possible task is to fight to regain freedom. But, since in a democracy freedom of expression is equally uncomfortable for those in power, it is in a democracy that its contours can be reaffirmed day after day. Freedom of expression is the yardstick that measures the strength of democracy in a country. It is only in democracy that governments can be forced to correct misinterpretations of the limits of freedom of expression, or the restrictions to which they can legitimately submit its exercise.