Freedom of Expression
Press Release R52/16
The Office of the Special Rapporteur expresses concern over the criminal conviction for defamation of a journalist in Peru
April 25, 2016
Washington, D.C. – The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) expresses its concern over the criminal conviction issued on April 18th by the Seventh Criminal Court of Lima, Peru against the journalist Fernando Valencia Osorio, Director of the newspaper Diario 16, on charges of defamation aggravated by the dissemination of prejudiced publications, against the ex-president of the Republic of Peru, Alan García Pérez.According to the information available, the court sentenced Valencia Osorio to one year and 8 months in prison (in suspense) and ordered him to pay a fine of 1.900 soles (approximately USD $580). The court also barred the journalist a payment to the former president equivalent to 100.000 soles (approximately USD 30.000) for civil damages. According to the information obtained, the journalist has five days after the notification of the judgement to appeal.
The case arose in 2013 when Diario 16 and other media reproduced statements of the current president of the Republic, Ollanta Humala, during the inauguration of an infrastructure project in the region of San Martin. On that occasion, Humala made statements critical to those who had executed the work in the following terms: "today we inaugurate a bridge, yet this bridge should have been constructed two years ago when we had the Evitamiento road. Why did they build the road if they needed a bridge?" In the same speech the president made reference to a series of ongoing sanitation works and requested to control "that they are well executed, and they are not given to companies that pay bribes and stop projects when half done (…) thieves have to be imprisoned and not in places of power." Different media groups interpreted, due to the temporal reference, these critiques to be directed to the previous government headed by Alan García. Diario 16 titled the cover of the newspaper with the phrase "thieves have to be in prison and not in places of power" with a photograph of the former president. Alan García then filled criminal charges against Valencia Osorio for defamation since in this opinion the current president had not mentioned him in his speech and thus by linking him – in the manner done by Diario 16 –had damaged his reputation and image.
The case law of the Inter-American System has repeatedly recognized that freedom of expression grants—to both the directors of media outlets and the journalists that work for them—the right to investigate and disseminate information in the public interest. The Commission has established that "the sort of political debate encouraged by the right to free expression will inevitably generate some speech that is critical of and even offensive to those who hold public office or are intimately involved in the formation of public policy." In a democratic and pluralistic society, the actions and omissions of the State and its officials or of those to aspire are subjected to greater scrutiny by the press and public opinion. This implies that the State must abstain more strictly from establishing limitations to these forms of expression and in which public officials should have a wider threshold of tolerance to criticism.
As argued by the inter-American Court in various decisions, when evaluating situations where subsequent liabilities can be imposed, judges should strike a balance between the respect of the right to honor and the reputation of others with the value of the right to an open debate on issues of public interest in a democratic society, and the chilling effect of criminal sanctions on the exercise of the right to freedom of expression. Moreover, in the case of public officials it is always possible to have greater access to the media to respond to criticism and offer explanations.
The IACHR, based on the American Convention on Human Rights, established more than a decade ago the use of criminal law to punish manifestations on matters of public interest and officials is disproportionate and therefore violates the right to freedom of expression. Thereon, the 10th principle of the Inter-American Declaration of Principles on Freedom of Expression adopted in the year 2000 by the Inter-American Commission on Human Rights, established that 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."
Accordingly, the Commission calls upon the State of Peru to adhere to the strictest international standards on freedom of expression so as to ensure the right of journalists and media outlets to practice journalism without improper interventions, and the right of society as a whole to be informed, and as a consequence, to promote the reform of domestic criminal legislation that punishes speech that relates to public interest or directed at public officials.
The Office of the Special Rapporteur for Freedom of Expression is an office created by the IACHR to stimulate hemispheric defense of the right to freedom of thought and expression, considering its fundamental role in the consolidation and development of the democratic system.