Anabalón 1

Miguel Alberto Anabalón Torres

Emilio Araya

Composition III

Jueves 30 May 2019

Shackles and free speech.

May you be the master of your thoughts, but beware to become a slave of your own

words. Freedom of speech has been referred as a right. Our legislation consecrates it in the

Constitution, article 19 , which guarantees, to all people, in its number 12 “Freedom to express

opinions and to disseminate information without prior censorship in any form and by any means,

without prejudice to assuming the responsibility for any crimes or abuses committed in the

exercise of such freedoms, in conformity with the law which is to be passed by a qualified

quorum” (Constitution art. 19) . Due to our recent history1, it seems incorrect to establish a

perimeter, yet I believe it is important to shed some light over this subject in order to avoid

future abuse or missus. As a right, it seems easy to determine the use of freedom of speech.

Nevertheless, the boundaries in which it can be exercised tend to be shadowed by the right

itself. In this essay, I will introduce the limitations of the exercise of Freedom of Speech,

because as a right, it is subordinated to the limits that origin of its exercise, and I will also refer

to the conflict which blossoms when it interacts with other rights. For that purpose, in first place,

it is important to state the cases in which our legislation points out those restrictions. In second

place, I plan to indicate the foreign legislations experiences dealing with the limits of the right.

And in third place, I will mention academic theories about right limitations and exercise conflict.

1
Chile was under a dictatorship from years 1973 to 1990. During that time, the exercise of many rights was limited,
and human rights violations by the State were a common practice. Under that paradigm, when Chile became a
democracy those limitations were lifted.
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The limitations stated in the Constitution attribute the responsibility to the law, in which

case, our Penal Code assume that obligation sanctioning insults in the article 416, and slanders in

the article 412. Insults refer to those words who contain a negative value when they are attributed

to a person (Penal Code art. 412,416). Slanders refers to the association of a person with a certain

criminal conduct. Therefore, if someone is called a thief, it will be an insult, but if that person is

accused of robbing something in some place and date, that will be a slander. In both situations,

the one who is compelled to accuse and ask for the Public Ministry’s intervention is the

offended; accordingly, the State does not have the obligation to prosecute these felonies.

Journalism in Chile struggles with these limitations. There have been law projects which aimed

to sanction and restrict the research faculties from journalists, but those efforts have not

prospered. The State and public authorities do not look with good eyes the way some journalist’s

investigations have been carried out, because it compromised their position in front of the

population. A good example of this happened in 2015 in the Que pasa magazine. The magazine

published an article about a relative of the President, Michelle Bachelet, who bought a property

in strange circumstances relating to the source of his funds (Quezada). After that article was

published, the President presented a complaint at the Public Ministry to pursue the responsibility

of the journalist who wrote the article.

The experience of other countries regarding to the limitations of this right often point out

as a limitation the hate speech. In Canada, this kind of speech is criminalized in their Penal Code

when a speech willfully promotes hatred against any identifiable group, and in its Human Rights

Act when a speech exposes a person to hatred or contempt on the basis of a prohibited ground of

discrimination (Joyce). The European Union adopted last year new regulations regarding to the

media content and video streaming. Hate speech is sanctioned and prohibited, in this case, on
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behalf of the minor’s protection (New). On the other hand, some Asian countries has established

limitations to free speech regarding to sedition. This refers to advocating force as a way to

change the government, nevertheless, human rights violations complaints are often labelled as

sedition (Tiphagne). This kind of practice tarnishes the use of free speech as a mechanism to

denounce the abuse caused by public institutions and State actions. In our legislation, the latest

approach to hate speech was the creation of the Zamudio Law, or discrimination law, which

condemns hate conducts against a specific group of our society. Among those conducts, the hate

speech is sanctioned.

Theories about right exercise stablish different criteria to determine the ground in which a

right can operate with a certain degree of freedom. On one side, if there is no restriction or

boundaries the exercise of the right may affect others rights, as we stated in the case of hate

speech. Yet, if we stablish too many conditions to exercise the freedom of speech, it will no

longer could considered as a right. It becomes a necessity to balance the exercise of any right in

order to maintain the rule of law and a functional society. The European Union Agency for

Fundamental Rights consider that freedom of speech is a vital human right in any democracy.

They identify four elements that help to stablish limitations (FRA). The first is legality; every

limitation to the exercise of a right should be stablished previously by law. The second is

necessity; it relates to the presence of a social demand concerning to the exert of the right itself.

The third is proportionality. The limitations should possess a rational degree of extent; you can

not use a hammer to kill an ant. And the fourth corresponds to non-arbitrary discrimination.

Logical thinking and empiric reasoning are presented as the most important guidelines in which a

limitation is developed. An arbitrary limitation will only contribute to taint freedom of speech.

Legal system should not tent to antagonize the exercise of a right when it clashes with a different
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right. A good legal system stablishes different elements which avoid rights conflict. The reason

behind this lies on the necessity to articulate and design a system which allows people to interact

with each other.

In this essay I developed an austere overview of the right concerning to its concept,

related legislation, compared experience and theorical approach. Freedom of speech is a human

right, which is protected by our legal system. In order to maintain a balance regarding to its

exercise, it becomes necessary to set rules. These rules keep limitations and define the

playground in which a person can freely make use of his or her speech. These guidelines

experience constant change, for society is in continual growth. Our country is not an alien to this

process; some steps have been given in the right direction, because Zamudio Law moves towards

that path. Not the less, the challenge is still present, and the State should not forget this.

Sometimes, the line between hate speech and freedom of speech becomes blurred, but this do not

suppose an impediment to develop policies and limitations to freedom of speech. There is no

such thing as a perfect mechanism to identify a situation in which freedom of speech trespass its

limits. The subject is still evolving and acquiring new aspects; free speech involves new TICs

and complex interaction between the State, mass media, and other members of our society.
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Bibliography.

Chilean Constitution. Constitución política de la República. 16 Jun 2018.

www.leychile.cl/Navegar?idNorma=242302

Chilean Penal Code. Código Penal. 3 May 2019. www.leychile.cl/Navegar?idNorma=1984

FRA. European Union Agency for Human Rights. Balancing freedom of expression in the

modern world. 1 Dec. 2017, fra.europa.eu/en/news/2017/balancing-freedom-expression-modern-

world

New, Edward. New EU Directive Limits Hate Speech, Establishes European Content Quotas. 6

Nov. 2018 www.ip-watch.org/2018/11/06/new-eu-directive-limits-hate-speech-establishes-

european-content-quotas/

Quezada, Andrés. Los negocios de Dávalos Bachelet. 3 Jan. 2013.

www.quepasa.cl/articulo/politica/2013/01/19-10894-9-los-negocios-de-davalos-bachelet.shtml/

Tiphagne, Henri. In Asia, freedom of speech is critical in the fight for human rights. 25 Jul. 2016.

www.openglobalrights.org/in-asia-freedom-of-speech-is-critical-in-fight-for-clo/

Arthur, Joyce. The Limits of Free Speech. 21 Sep. 2011 rewire.news/article/2011/09/21/limits-

free-speech-5/