Delight Lab Case English Version

DELIGHT LAB A RECORD OF EXPERIENCES ON ART AND CENSORSHIP IN CHILE

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(*) This register was developed by the Acción Constitucional and Delight Lab teams. Last updated on May 4, 2021. Special thanks to the following organizations; Frente por la libertad de Expresión y la Protesta Social FLEPS; Primera Línea Sindical; Sindicato Starbucks for collaborating with their support, information and records.

The Delight Lab collective, formed in 2009 by activist artists Andrea and Octavio Gana, has been in charge of making visible, denouncing and opening dialogues around the political, social and health conflicts that Chile has experienced recently through messages that call for a collective reflection.

With this intentions, on May 19, 2020, the Delight Lab collective projected the words "Humanity" and "Solidarity" on the Telefónica Tower building as a way to support and make visible the problems brought about by the pandemic and the Chilean government's handling of the situation.

In the course of this activity, cars without license plates accompanied a truck carrying six powerful white light bulbs, which were used to aim at the projection, completely blocking the intervention.

This lead to the filing of a constitutional complaint on June 15 by the siblings Andrea and Octavio Gana against:

The individuals that carried out the censorship
Carabineros de Chile (Chilean police)
Investigation police of Chile (PDI)
Chief of National Defense of the Metropolitan Region
Ministry of the Interior and Public Security
Intendency of the Metropolitan Region

This constitutional complaint was sponsored by the lawyers Dinka Benítez, Danny Rayman and Patricia Rada from the organization Acción Constitucional and can be consulted here.

On may 27th, on the news program "24 HORAS" in one of the versions of the section "False, True, inaccurate?" journalist Paulina de Allende Salazar revealed details of this situation, including:

The service was provided by the company URDILE UB-42 SpA, who were contracted by producer Juan Manuel Guzmán.
Juan Manuel Guzmán contacted the company for a 5-day "urban intervention" on Providencia Avenue and did not respond to the contacts made by the program's production.
The Intendency of the Metropolitan Region indicated that it did not issue the permit, nor did it request the service, and that upon realing of this, and oral complaint was made to the Public Prosecutor's Office through the investigative Police (PDI).
The public prosecutor's Office responded that there was no record of a crime or infraction since it was carried out from a private property.
The Eastern Prosecutor's Office confirmed that it had not received any complaints about the incident as of the date of this report.
Providencia Municipality pointed out that this type of authorization does not go through any municipality and that the complaint could only be filed by the owners of the Telefónica building.
The Investigative Police (PDI) indicated that they were at the site to carry out COVID-19 controls and that they did not receive any complaints.
Carabineros de Chile stated that it would not comment on the situation.

After the filing of the constitutional complaint, on June 17, 2020, the Court of Appeals of Santiago declared partially admissible the constitutional action, only against the persons linked to the acts of censorship, and then on June 18, 2020, it decreed a No-Action-Order in favor of the members of the Delight Lab collective, to ensure their proper right to freedom of expression while the constitutional complaint was being resolved.

Despite the above, on July 30, 2020, the Supreme Court, after hearing an appeal filed by Acción Constitucional, revoked the decision of the Court of Appeals declaring fully admissible the constitutional complaint against not only private actors but also against the police institutions and governmental authorities, for which reason the Court of Appeals ordered each of the defendants to report the facts of the censorship.

OTHER EPISODES OF HARASSMENT AND CENSORSHIP

Andrea and Octavio Gana were working at the headquarters of the Central Unitaria de Trabajadores de Chile (CUT) in Santiago, making light projections for the Agrupación Nacional de Empleados Fiscales and the Asosiación de Funcionarios de Impuestos Internos de Chile on the Entel Tower, when two police officers took photographs and then went to the entrante of the CUT.

As a result, they decided to turn off the equipment around 19:30 hrs. Subsequently, a Carabineros mobile checkpoint arrived, license plate Z-5893, from which 5 officers disembarked.

After an hour, the police patrol left and only 3 officers remainded at a fixed point who left at about 21:15 hrs. After the police officers left, Andrea and Octavio decided to leave the location.

While they were carrying out a light intervention in favor of the Primera Línea Sindical group in front of the main building of the Pontificia Universidad Católica, police officers went to the building, rang the doorbell and when there was no answer and there was no doorman on site, they left.

As a result, Andrea and Octavio decide to turn off the equipment for about 30 minutes and then resume the projection on the facade of the central house of the university from 20:40 to 21:20 hrs.

As part of the cultural event "Visual Arts Week" organized by the Municipality of Santiago and the Ministry of Culture, Arts and Heritage of the Government of Chile, the Delight Lab collective in collaboration with CIMA Gallery and the Pésimo Servicio collective made an intervention in tribute to the visual poet Juan Luis Martínez and the poet José Ángel Cuevas.

In the middle of the projection of the Mapuche star Wünelfe around the statue of General Baquedano, a white spotlight coming from the police patrol car, license plate Z-8117 -belonging to the 21st Police Station of Estacion Central- was aimed at the projection to hide it.

[From minute 32:19 you can review the events that took place]

It is in this context that at about 1:00 a.m. on September 25m, police officers illegitimately went to the place to try to obtain information about the workers of Galería CIMA, with staff from the administration of the building, despite the fact that there was no crime that would have justified such and inquiry.

[From minute 14:40 you can see the arrival of Carabineros at the CIMA gallery on September 25, 2020]

As can be seen from the facts described above, the No-Action-Order decreed on June 18 by the Supreme Court was not complied by the Police, thereby constituting the crime of contempt, which was reported to the Court of Appeals of Santiago.

It is worth mentioning that to date the Ministry of Culture, Arts and Heritage of the Government of Chile has not referred to the situation.

[Here you can review the brief submitted by Acción Constitucional that reports the contempt of court]

On March 25, the hearings took place in front of the First Chamber of the Court of Appeals of Santiago, in which the lawyer Danny Rayman argued for Andrea Gana and Octavio Gana from the Delight Lab Collective, and against the constitutional complaint the lawyer of the State Defence Council representing Carabineros de Chile, the Metropolitan Region Intendancy, the Ministry of the Interior and the Chief of National Defense, as well as the lawyer of the company Urdile SpA.

On April 1, 2021, the Court of Appeals of Santiago rejected the constitutional complaint mainly because they did not consider the existence of a threat or disturbance to Andrea and Octavio Gana in their fundamental rights, thus ignoring the various situations of harassment that they have faced, not considering the existence of contempt that occurred after the filing of the constitutional complaint, nor the fact that the police officers reports justified they were messages alluding to the social outbreak.

[Here you can consult the judgment of the Court of Appeals of Santiago].

In view of this ruling, on April 8, 2021, Acción Constitucional filed an appeal before the Supreme Court against the ruling that rejected the constitutional complaint due to:

The judgment makes a restrictive interpretation of the acts of censorship denounced and the improper restriction of Andrea's and Octavio's rights.
The permanent situation of authorities who are restricting freedom of expression in the current political and social context is not considered.
It does not consider in its analysis that the violation of Andrea and Octavio's rights should consider not only their expressions as artists, but also as activists, and that therefore their artistic expressions contain discourses of public interest and in defense of human rights.
The lack of effective remedies for situations of harassment and censorship by the authorities or other individuals, placing on the shoulders of Andrea and Octavio the delay of the judicial system in reacting to violations of fundamentals guarantees such as freedom of expression.

Subsequent to this presentation, the Supreme Court rejected the appeal, confirming the judgment of the Court of Appeals of Santiago. Following this action, the Delight Lab collective decided to go to the Inter-American Commission on Human Rights.

Due to the inefficiencies and bureaucracies in the responses of the institutions and authorities that have infringed regulations and affected rights, other internationals organizations have joined the analysis and support to demand adequate compliance with the mechanisms available to prevent situations of censorship and violations of freedom of expressions.

In this context, the association Frente por la Libertad de Expresión y la Protesta Social de México (FLEPS), formed by the organizations ARTICLE 19mx, CDH Vitoria, Centro Prodh, CEPAD, Cencos, CAUSA, Marabunta, Propuesta Cívica, Serapaz, Red TDT and Resonar, collaborated with an Amicus Curiae for the case.

The FLEPS document states that their presentation seeks to contribute to the establishment of better criteria for the protection and guarantee of human rights, and is also an opportunity to establish precedents that can be used for structural transformations in the contries.The document on the Delight Lab case insists on:

The document on the Delight Lab case insists on:

The evident stance of the authorities to hide, make invisible, silence or censor voices, messages that criticize and also seek to exhibit and make visible the actions or omissions of the authorities themselves, which have repercussions on the exercise of human rights.
There is a double victimization and violation of rights both by the authorities' own actions regarding the failure to guarantee freedoms or social rights and by the censorship or repression when they attempt to expose or criticize this failure.
The restrictive interpretation of public space by the authorities, omitting its individual and collective dimensions where the practice of various human rights converge, including free expression and protest.

In this regard, Artículo 19 suggest to social organizations that may experience similar situations the importance of generating support networks in the defense of human rights and the constant sharing of experiences between countries and organizations to learn about the different contexts with a focus on the internationalization of rights.

In this regard, Article 19's lawyer, Luis Knapp, argues: "The generation of support networks is an indispensable tool for national authorities, as a mechanism for supervision and pressure in a globalized and internationalized human rights context, where the old idea of state sovereignty must be reconsidered.

[You can review the complete document here]

(*) ONG Acción Constitucional is a non-profit organization dedicated to the defense and promotion of human rights that emerged in the context of protests and social mobilizations in Chile. Our main focus is the defense of human rights defenders, including human rights observers, communicators, reporters, artists, environmental and indigenous peoples' activists, among other individuals and groups.

(*) If you are an artist and you are experiencing a situation of censorship or judicial harassment and need legal assistance, you can contact us by sending an email to contacto@accionconstitucional.org

(*) If you are interested in knowing more about issues related to artistic censorship in Chile, you can consult chapter 3 of the report "Freedom of Expression in Chile 2020" of the Observatorio del Derecho a la Comunicación and Fundación Datos Protegidos.

Appreciate