Freedom of Expression

Press release R12/22

SRFOE is concerned about the conviction for defamation for the publication of the journalistic book "Plata como cancha" in Peru and warns about its potential intimidating effect

January 11, 2022

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 two-year suspended prison sentence and the payment of a civil reparation of 400,000 soles against journalist Christopher Acosta and editorial director Jerónimo Pimentel in Peru. For the Office of the Special Rapporteur, this decision is contrary to regional standards on freedom of expression and generates a significant intimidating and self-censorship effect that affects not only the convicted persons but the entire press and Peruvian society.

According to the information received, on January 10, 2022, the 30th Criminal Liquidating Court of the Supreme Court of Lima sentenced reporter Christopher Acosta and Jerónimo Pimentel, director of the publishing house Penguin Random House to two years suspended imprisonment for the crime of aggravated defamation (article 132 of the Criminal Code) to the detriment of the former presidential candidate and leader of the political party Alianza para el Progreso (Alliance for Progress), César Acuña. Likewise, the judge ordered the convicted parties to pay a civil reparation of 400,000 soles (equivalent to 100,000 US dollars). The process originated as a result of a complaint filed by Acuña after the journalist published the book "Plata como cancha" (Silver as a court). The book is described by the publisher as "an exhaustive journalistic investigation that reveals secrets, impunity and fortune of the Peruvian politician", and would include "judicial and fiscal records, government resolutions", among other information related to the plaintiff's political and business career.

In addition to being a leader and founder of the political party Alianza para el Progreso, César Acuña has also previously served as a congressman of the Republic, mayor of the city of Trujillo and governor of the department of La Libertad. Likewise, he was president of the Assembly of Regional Governments of Peru (ANGR); and, according to available information, he is publicly recognized in the educational business sector for having founded, as described in his web page, "the largest University Consortium in the country integrated by Universidad Cesar Vallejo, Universidad Señor de Sipán and Universidad Autónoma del Perú".

The complaint against the journalist and the publisher's executive was filed in March 2021. On May 12, 2021, the Thirtieth Criminal Court of Lima of the Superior Court of Justice of Lima received the complaint and determined the notification of the parties for an arraignment hearing on August 9. The closing arguments hearing took place on August 14, 2021, followed by the reading of the sentence on January 10, 2022. Attorneys for Christopher Acosta and Jeronimo Pimentel indicated that they will appeal the decision.

Both the Inter-American Commission and the Inter-American Court have held that the application of criminal law to limit speech on matters of public interest is incompatible with the American Convention on Human Rights. This type of expression enjoys enhanced protection under the Inter-American legal framework because of its importance for the exercise of human rights and for the consolidation and functioning of democratic societies. In the case of specially protected speech, the Commission has considered that even stricter criteria must be followed to verify the validity of the limitations imposed on such speech.

This differentiated threshold of protection is justified, according to the Inter-American Court, because such persons "have voluntarily exposed themselves to a more demanding scrutiny" by society and because "their activities leave the domain of the private sphere to insert themselves into the sphere of public debate". The Inter-American human rights system has been consistent in emphasizing the strict scrutiny that must follow compliance with the conventional requirements on subsequent responsibilities when the speeches that are sought to be limited concern persons of notoriety or with voluntarily assumed public responsibilities.

As the IACHR has held, the subsequent liability of journalists "must be excluded (...) when they acted with reasonable diligence in the search for and verification of the information disseminated. On this point, the IACHR has indicated that Article 13 of the American Convention protects information on matters of public interest and does not generate civil or criminal liability of the person who disseminates it "unless it is proven that the person who expressed it did so with the intent to cause harm and with knowledge that false information was being disseminated or with an evident disregard for the truth of the facts.

Likewise, the Inter-American Court has emphasized that a disproportionate civil sanction can be as or more intimidating and inhibiting for the exercise of freedom of expression than a criminal sanction, since it can compromise the personal and family life of those who denounce or publish information about a public official; even discouraging citizens in general from expressing themselves on matters of public interest.

In view of the foregoing considerations, the Special Rapporteur’s Office recalls that, whenever a judicial controversy arises whose purpose is to limit the exercise of the right to freedom of expression, democratic States are called upon to weigh the nature of the expressions at stake and their relevance for democracy; the restricted margin for the application of criminal law; the public status of the subject allegedly affected by such expressions; the reasonable diligence of the press in the exercise of its work; and the proportionality of the possible sanctions.

The Rapporteur’s Office notes that controversies such as this one have broad and solid standards in the Inter-American system and therefore urges the State of Peru to adapt its domestic law and practices to the current doctrine and jurisprudence on freedom of expression. At the same time, it calls upon the competent judicial authorities to resolve the case in accordance with international human rights standards.

The Office of the Special Rapporteur for Freedom of Expression is an office created by the Inter-American Commission on Human Rights (IACHR) to encourage the hemispheric defense of the right to freedom of thought and expression, considering its fundamental role in the consolidation and development of the democratic system.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.