the Chilean courts should have applied the provisions of Principle 10 of the Declaration of
Principles on Freedom of Expression of the IACHR. 6
13.
The petitioner alleges that the criminal punishment against Mr. Carlos
Baraona Bray has the effect of imposing self-censorship on a subject that was widely
discussed by Chilean society and the subject of investigations by the judicial and legislative
branches. The petitioner adds that since the conviction of the alleged victim, there have been
no more public accusations involving politicians or public figures in the unlawful cutting of the
alerce tree. In addition, the petitioner maintains that while Mr. Baraona Bray benefited from
the conditional suspension of his prison sentence, the decision “left an official record that a
potentially injurious statement was made against Mr. Páez, […] in addition to leaving a stain
on Mr. Baraona’s résumé by establishing that he was convicted of a crime.”7
14.
The petitioner states that the decision of June 22, 2004, issued by the Puerto
Montt Court of Guarantee stated that “greater seriousness was required of Mr. Baraona Bray
in his assertions in that he was a person considered credible by the community and was
uninformed on the subject,” that “the damage that his statements could inflict on the honor
of the affected individual was greater.” and that “the statements of the defendant cannot be
considered to be enveloped in the seriousness and gravity required for his right to report to
take precedence over the honor of the complainant.”8 The petitioner states that these
considerations impose on the alleged victim the burden of a duty to verify information beyond
that applicable to someone else without the same level of credibility.
15.
In this regard, the following abstract from the decision of the Puerto Montt
Court of Guarantee is to be noted:
Based on all that has been indicated heretofore, it can be concluded that Mr. Baraona
Bray accused Mr. Sergio Páez Verdugo of a lack of morality consisting of pressure
exerted on public officials for the settlement of property titles and the illegal felling of
alerce trees due to electoral promises, without having background that would indicate
this, but on the contrary, he knew or should have known that Senator Sergio Páez was
not named in the file of the Los Muermos Court as favoring those who illegally cut alerce
on the referenced property. On the contrary, if there was any type of pressure it was on
behalf of the owner who wanted to stop the illegal felling of alerce. That being the case,
it appears disproportionate to this court to sacrifice someone’s right to honor to
another’s freedom of expression when the assertions do not have the support claimed,
as they are mere conjectures or rumors that are not presented as such but rather as
the truth.9”
16.
The petitioner indicates that in the same decision the Puerto Montt Court
maintained that since Mr. Baraona Bray was an attorney and complainant in a judicial case
regarding the alleged unlawful cutting of alerce, he should be required to demonstrate
“greater seriousness” in his assertions. In this respect, the petitioner alleges that this
reasoning imposes on Mr. Baraona Bray a greater degree of diligence as compared to the
That principle establishes that “Privacy laws should not inhibit or restrict investigation and
dissemination of information of public interest. The protection of a person’s reputation should only be
guaranteed through civil sanctions in those cases in which the person offended is a public official, a
public person or a private person who has voluntarily become involved in matters of public interest. In
addition, in these cases, it must be proven that in disseminating the news, the social communicator had
the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross
negligence in efforts to determine the truth or falsity of such news.”
7 Petition sent to the IACHR on March 4, 2005, page 12.
8 Decision of the Court of Guarantee of Puerto Montt, Tax ID No. 0410008047-3, page 36.
9 Decision of the Court of Guarantee of Puerto Montt, Tax ID No. 0410008047-3, pages 40-41.
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