Peru: TV reporter sentenced to two years for defamation

As Peruvian TV reporter Hans Francisco Andrade Chávez is sentenced to prison and a fine, ARTICLE 19 urges the government of Peru to recognise the growing international consensus that criminal punishment as a sanction for defamation is disproportionate and produces a chilling effect on freedom of expression.

Hans Francisco Andrade Chávez, a journalist with the network, América TV, was sentenced on 6 July to two years in prison for defamation of a local public servant, ordered to pay a 4,000 PEN fine (app. US $1,500) and ordered to issue a public retraction and apology. Andrade Chávez is planning to appeal the decision.

Regional deputy public services director, Juan José Vásquez Romero filed the defamation case after Andrade Chávez interviewed a political party member who claimed Vásquez Romero had threatened their life. Andrade Chávez asserts that he sought comment from Vásquez Romero before running the story, and has been repeatedly targeted in the past for his critical reporting on regional government.

ARTICLE 19 regards this sentence as disproportionate and as a clear violation of Peru's international obligations regarding the right to freedom of expression.

The sentence of Andrade Chávez runs contrary to international standards on freedom of expression. ARTICLE 19 points out that both the UN Human Rights Committee and the Inter-American Court of Human Rights suggest that criminal sanctions for defamation are unacceptable due to their detrimental effect on freedom of expression. The Inter-American Commission on Human Rights expressly states in its 2000 Declaration of Principles on Freedom of Expression that only civil sanctions ought to be used to protect a person's reputation when that person is a public official and thus justifiably subject to a higher level of social scrutiny. Criminal defamation laws prevent legitimate criticism and encourage self-censorship.

The 2002 Joint Declaration on International Mechanisms for Promoting Freedom of Expression by special rapporteurs including the Organization of American States (OAS) Special Rapporteur on Freedom of Expression, declares that criminal defamation is an unjustifiable restriction on freedom of expression. Moreover, the Declaration of Chapultepec, which Peru endorsed in February 2001, further emphasizes that "no news medium nor journalist may be punished for publishing the truth or criticizing or denouncing the government".

Peru, a party to the International Covenant on Civil and Political Rights and a member of the OAS, is obliged to respect these standards and implement them in practice. Where civil remedies exist for cases of defamation, the international consensus is that additional criminal remedies cannot be justified as necessary.

The international standards on freedom of expression were clearly violated in the present case. The plaintiff, a deputy manager of public services of Chepén, is a figure of legitimate public interest in Peru due to his role as a public servant. As a journalist, Andrade Chávez has a duty to report on matters of public interest and a right to participate in the open debate over public figures critical to a democracy.

Furthermore, journalists such as Andrade Chávez ought not to be at risk of criminal sanctions for reporting the words of others in matters of significant public interest, as in the case of the interview leading to his 6 July conviction. ARTICLE 19 has long argued that journalists should not be held liable for reporting others' statements when the statements are part of a discussion on a matter of public interest; the reporter refrained from endorsing the statements; and it is clear the statements were originally made by someone else. Given that Andrade Chávez merely conducted the interview in which the allegedly defamatory statements were made, the defence of "words of others" against his defamation charges should surely apply. To not allow this defence in cases where a journalist is merely interviewing a public figure severely increases the media's liability and consequently limits free flow of information to the public. 

Criminal defamation is a disproportionate and unjustifiable remedy which inevitably has a chilling effect on journalism and consequently a detrimental impact on journalists' right to freedom of expression and civil society's right to information. Therefore, ARTICLE 19 urges the Peruvian Government to honour its international and regional commitments to free expression.  

ARTICLE 19 encourages the government of Peru to join in the growing international consensus that civil remedies provide sufficient justice in cases of alleged defamation. The Peruvian government should act immediately to decriminalise defamation and protect the right to freedom of expression for everyone in Peru, including journalists. ARTICLE 19 also calls on the Peruvian judicial authorities to reverse the lower court's conviction of Andrade Chávez upon his appeal.

ARTICLE 19 also notes with concern the continued implementation of criminal defamation laws in the Andean region. In early June 2011, the Colombian Supreme Court upheld the criminal defamation provisions of Columbia's Penal Code. More recently, on 20 July 2011 an Ecuadorian judge sentenced three directors and one journalist from one of Ecuador's largest daily newspapers to three years in prison for defamation of Ecuador's president. ARTICLE 19 recommends that the Organisation of American States (OAS) remain vigilant in their efforts to safeguard freedom of expression, particularly in the Andean region.