another person are made through the media, the fines imposed are increased and
the prison terms of the Criminal Code remain unchanged.
80. By establishing a more severe penalty for those who use the media, the Press Law
punishes them more harshly for the same offenses than citizens who are not linked
to newspapers or the media in general.
81. It is true that the same provision establishes that “political criticism” does not
constitute slander, unless it has a specific intent, approximating the doctrine of real
malice. 65 However, this exception allows broad discretion to attribute an animus
injuriandi to any political criticism, which may nullify the effects of the
aforementioned legal exemption. Hence the importance, analyzed at the beginning
of this opinion, of adopting objective and clear criteria on the exceptions to the
application of criminal law, in order to limit, to the extent possible, the scope of the
judge’s interpretation.
82. It is also true that Article 30 of the same law, although it does not generally accept
the exceptio veritatis argument, paves the way for it to be accepted by providing
for the suspension of the proceedings or the acquittal of the accused when the
speech is in defense of a real public interest or when the offended party performs
public duties and the alleged accusation refers to facts related to the exercise of
his office. Thus, although exceptionally, Chilean legislation establishes some
important safeguards to protect speech of public interest.
83. However, even with such safeguards, the above provisions of the Chilean Press Law
impose a harsher penalty on an activity pertaining to the exercise of freedom of
the press, placing an excessive burden of proof on the accused to demonstrate not
only the truthfulness of the facts but also the absence of a “manifest intent to
injure.” They also contain unclear wording that may hinder the definition of speech
of public interest in the exceptions regarding the illegality of the offense.
84. It could be argued that the intention of the legislator was to ensure a more rigorous
criminal protection due to the greater scope of the damage to a person’s honor
when it is perpetrated by the media. However, in practice, by instituting a more
restrictive sanction solely and exclusively for exercising a basic human right, the law
ends up causing a direct violation of the right to freedom of expression. This is why
the legal protection afforded to those who use the media cannot be lessened, but,
on the contrary, should be increased due to its collective importance in a democratic
society. 66
85. Not surprisingly, Article 1 of the Chilean Press Law itself establishes that freedom
of opinion and information, without prior censorship, constitutes a fundamental
right of all persons. It also recognizes that people have the right to be informed
about events of general interest. However, it not only criminalizes, but even
punishes more severely statements made through the media. An obvious
contradiction.
86. Therefore, there is no pressing social need –a term used previously by the InterAmerican Court- to justify the imposition of a more severe penalty for crimes
against honor committed through the media. Nor did the investigation of this case
65
This doctrine has its origin in the case law of the United States Supreme Court, in the case of The New York
Times v. Sullivan (376 U.S. 254 - 1964), which held that, in order for a public official to claim compensation for
damage to his honor caused by defamatory statements, it is necessary to prove that said statements were made
with actual malice, i.e. with knowledge of or indifference to the falsehood of the opinion or information disclosed.
66
Inter-American Court. Case of Moya Chacón et al. v. Costa Rica. Preliminary objections, merits reparations
and costs. Judgment of May 23, 2022. Series C. No. 451. Concurring opinion of Judge Rodrigo Mudrovitsch, §6163.