Use and Abuse of Social Media as a Punitive Remedy in Light of Criminal Law: A Tool or a Court? Analysis of the Chilean Regulation

Abstract

Over the last few years, Chile’s judicial system has witnessed a rise in criminal assumptions generated through social networks, under its hypotheses of funas, doxing, flagging or, in general, the exposure of the personal data of an individual, whether motivated by the performance of conduct of criminal relevance or simply of dubious morality or social appropriateness. Although these conducts originated as a form of digital social empowerment, they have turned into a criminal matter on their own right, posing a series of issues regarding the correct application of the law and casting doubt on the appropriate legal mechanisms to handle these types of accusations, as cases involving these kinds of conducts have been resolved both on a criminal and constitutional level. Thus, the purpose of this article is to determine whether the current Chilean national regulation provides sufficient tools that, with a reasonable interpretation, allow it to correctly handle these sorts of cases. Moreover, this article aims to, through a comprehensive analysis of Germany’s current legislation, determine whether Chile requires a new all-encompassing regulatory approach to these hypotheses similar to the German solution, or if the current rules provide a proper solution to the problem of public personal data exposure on social media as a dangerous behaviour for the person whose data is being exposed.