Freedom of Expression

Press Release R50/17

Office of the Special Rapporteur Expresses Concern over a New Criminal Conviction for Defamation against a Columnist and Human Rights Defender in Peru



April 24, 2017


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 handed down in Peru on March 31 against lawyer Ronald Gamarra Herrera for the offense of aggravated defamation pursuant to a complaint filed by Luz Marina Guzmán Díaz, Councelor of the National Council of the Magistrate [Consejo Nacional de la Magistratura] (CNM).


According to the information available, the Criminal Court No. 35 [35º Juzgado Penal] of Lima sentenced Mr. Gamarra Herrera to one year of imprisonment (suspended), during which he, (i) cannot change his home address without previous Court permission; (ii) will have to attend to the Center of Biometric Control [Centro de Control Biométrico] every 30 days in order to justify his activities; (iii) pay a civil reparation within five months and (iv) do not incur in an offense of aggravated defamation again. The same Court established a daily fine to Mr. Gamarra Herrera of above PEN$ 3 thousand (approximately US$ 900) and ordered the payment of PEN$ 10 thousand (approximately US$ 3 thousand) as civil reparation in favor of complainant Mrs. Guzmáz Díaz.


Mrs. Guzmán Díaz had brought the case against Mr. Gamarra Herrera after he published a column in the weekly newspaper Hildebrandt and sus Trece in March 25, 2015, entitled ¨A favor for a favor¨ ["Favor con favor se paga"], in which he made reference to an illicit favor exchange between Mrs. Guzmán Díaz and the Public Attorney Mirtha Chenguayén Guevara.


According to the information provided by the State, the defense of Ronald Gamarra Herrera, field an appeal against the conviction received by the Court. The State added that it is awaiting the designation of the court that will decide the matter.


This is the third criminal defamation conviction handed down in Peru in less than one year; journalist Fernando Valencia Osorio was sentenced to one year and eight months in prison (suspended) on April 18, 2016, for the alleged aggravated defamation of former President Alan García and journalist Rafael "Rafo" León on May 3, 2016, was sentenced to one year of prison (suspended) and payment of a fine of PEN$ 6 thousand (approximately US$ 2 thousand). Both sentences were subsequently revoked by higher courts and the Special Rapporteurship highlighted the consideration of the Inter-American standards on freedom of expression in these cases.


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 disseminate information and ideas of all kinds, especially on public interest issues.


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 figures 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 expressions on matters of public interest and public officials is disproportionate and therefore violates the right to freedom of expression. Thereon, Principle 10 of the Declaration of Principles on Freedom of Expression, adopted in the year 2000 by the IACHR, 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."


Also, it is important to keep in mind that only facts, not opinions, are subject to tests of truth or falsity. Consequently, no one can be convicted of an opinion on a person when this does not entail the false accusation of verifiable facts.


Accordingly, the Office of the Special Rapporteur calls upon the State of Peru to adopt the international standards on freedom of expression regarding the subsequent liability for the dissemination of opinions and information, 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.