expression and avoid subjecting to public scrutiny conduct that undermines the
population’s interests.
22. It should be noted that Mr. Baraona Bray was acquitted of the crime of slander,
which was also the subject of the complaint filed against him, since, according to
the judgment of the Guarantee Court of Puerto Montt, Mr. Baraona did not accuse
Senator SP of a criminal act. 14
23. In comparative law, there are several models for the criminal protection of honor.
Two basic models can be identified: the tripartite model, which combines the
criminal offenses of libel, defamation and slander; and the bipartite model, which
differentiates only between libel and slander. Attention should be paid to the fact
that the nomen juris of the criminal offenses does not always express the same
content. For example, what constitutes defamation in one legal system may be libel
in another. 15
24. Thus, the considerations in this opinion do not cover crimes against honor based
on the attribution of a criminal act to another person - regardless of the
nomenclature adopted to refer to such criminal offenses in the various legal
systems that make up the Inter-American system - but only those that, in the
words of the Inter-American Court, involve the attribution of offenses and offensive
acts. 16 And the fact is that, aside from not being included in the factual framework
of the case, the behaviors that imply false attribution of crimes represent a more
serious infringement on the honor of individuals and would require a more profound
reflection by this Court, in the circumstances of a specific contentious case.
25. We will first present some general considerations on the current limits to the
provision and use of criminal measures to restrict freedom of thought and
expression in the domestic legal systems, in order to analyze the parameters
already established by the Inter-American Court, and then present the advances
embodied in the new step in the development of the Court’s jurisprudence achieved
in this case.
26. We will now examine some particularly problematic aspects – and therefore worthy
of reform- of the Chilean legal system related to criminal measures that have the
power to restrict freedom of expression in the name of protecting the honor of
others, beyond the lack of clarity, precision and specificity of the components of
the criminal offense of serious insult already highlighted in the judgment. 17 We
refer to (i) the existence of an aggravated modality when the injured party is a
public official or authority and (ii) the existence of an aggravated modality when
the statements in question are made through the media.
III.
The possibility of applying criminal measures in defense of honor,
according to the parameters already established by the Inter-American
Court of Human Rights
27. As we have tried to explain, the standard established in the judgment in Baraona
Bray v. Chile builds on the long tradition and foundations of the Inter-American
Court’s case law, which is committed to seeking a conventionally appropriate
solution to the tensions arising from the interaction between the exercise of
freedom of expression and criminal law as a mechanism for the protection of honor.
As a product of this fertile area of debate, the Inter-American Court has been
Judgment of the Court of Guarantee of Puerto Montt, of June 22, 2004 (evidence file, folio 11).
Cf. Pablo Serrano, Alejandro. La protección penal del honor y el conflicto con las libertades informativas –
Modelos del Common Law, continental europeo y del Convenio Europeo de DDHH, Buenos Aires, 2017.
16
Judgment, §129.
17
Judgment, §§137-142.
14
15