Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Contracts Expression
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The Peruvian Supreme Court of Justice sentenced journalist Christopher Acosta and Jerónimo Pimentel, director of the Penguin Random House editorial house, to two years in prison, after a defamation lawsuit filed by the leader of a political party. The Court determined that the expressions contained in the non-authorized biography book “Plata como Cancha” were not protected under the right to freedom of expression since they constituted an unlawful infringement of the right to reputation and honor of the politician. In addition, the Court declared the publisher Penguin Random House as a liable third party on the grounds that there was dependability between the defendants and the publisher.
Journalist Christopher Acosta Alfaro wrote an unauthorized biography titled “Plata como Plancha,” edited by Jerónimo Pimentel Prieto and published by Penguin Random House. The book refers to the alleged crimes committed by the Peruvian politician César Acuña Peralta, such as falsification of documents, embezzlement, plagiarism, and corruption of judges and prosecutors, among others.
In response, Acuña Peralta filed a lawsuit against Acosta Alfaro and Pimentel Prieto for libel and defamation of his honor, image, and reputation. He added that the reason for which Acosta Alfaro and Pimentel Prieto defamed him was to profit by distorting his public image. Particularly, the claimant asserted that 55 phrases found in the book had defamatory terms. Such phrases included, “if César Acuña were not rich, he would probably be in prison”, “he was very violent when he arrived home drunk,” among others.
For their part, the Acosta Alfaro alleged that the lawsuit threatened his work as journalists and that he conducted a professional investigation supported by extensive documentary evidence. Acosta Alfaro recalled that the source gathering period lasted about two years and included sources such as the Judiciary, Public Ministry, Congress, Financial Intelligence Unit and testimonies that are publicly available. Pimentel Prieto argued that he has never defamed the claimant and that he doesn’t know why he is included personally in the lawsuit. Pimentel asserts that as the director of the Editorial House, he has has not had any supervisory role in the book since his role is to manage the publishing house. Both argue that they were never formally requested to rectify any information.
The Peruvian Supreme Court of Justice heard the case and determined that the journalists violated the claimant’s right to honor and reputation. Therefore, the Court sentenced them to two years in prison. The execution of the judgment was suspended for one year, and both of them have to serve alternative measures. The Court awarded 400,000 soles (about USD$104,000 ) in civil damages.
The central issue for the Supreme Court’s determination was whether the 55 phrases of the book “Plata como Cancha” about a politician, a person of public interest, enjoyed constitutional protection or whether the individual’s right to honor and reputation should prevail.
The Court begins by analyzing the crime of defamation. It indicates that it is a crime of action by commission (ácción por comisión). That is, the conduct must always be attributed to an agent and refers to their positive action (par 4.2). Likewise, the crime of defamation requires from the active party “the intention to harm the honor or reputation of a person, being its objective and subjective elements; the attribution to a person of a fact, quality or conduct that damages their honor or reputation; the possibility of disseminating or publishing the accusations; and, the “animus difamandi” as an element of internal tendency that implies the special intention to damage the honor, different from the “animus informandi” when the intention is to inform about an issue.”
The Court recalls that the right to honor is protected under the Peruvian Constitution and recognized in Article 11 of the American Convention on Human Rights (ACHR). It also recalls that both the Constitution and Article 13 of the ACHR protect the right to freedom of expression. The Court recalled that the Inter-American Commission on Human Rights has considered this right to be the cornerstone of democracy and key for shaping public opinion given that it ensures that society is fully informed.
Recalling it own jurisprudence, the Court mentioned that in order to solve a conflict between freedom of expression and the right to honor, the judge must performe a balancing test that “akes into account the circumstances of each particular case and makes it possible to determine whether the conduct that violates honor is justified by the exercise of freedom of expression or information” (par. 4.10).
The Court then analyzed each of the 55 phrases deemed defamatory by the claimant. The Court considered 34 out of the 55 phrases to be defamatory. Among others, the Court stated that such allegations were false facts that damaged the plaintiff’s reputation; that the circulation of the book distorted the image and identity of the plaintiff; and that there was no serious verification of the sources or the veracity of the phrases.
With regards to Pimento Prieto, the director of the Editorial House, the Court stated that he should have supervised the content of the book in order to make sure that what was being published was true. Consequently, by omitting the verification, he allowed the publication of a book with defamatory phrases that led to the violation of the plaintiff’s honor.
The Court found that Penguin Random House Editorial Group was a liable third party and should pay civil damages in solidarity with the journalist and the director.
Consequently, the Court sentenced Acosta Alfaro and Pimentel Prieto to two years in prison. The execution of the judgment was suspended for one year, and both of them have to serve alternative measures. The Court awarded 400,000 soles (about USD$104,000 ) in civil damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression as it is a setback against the jurisprudence of the Inter-American Court of Human Rights, which has established that public officials have a higher threshold of criticism since they have voluntarily subjected themselves to public scrutiny. Furthermore, the judgment disregards the greater degree of protection enjoyed by ordinary citizens who engage in investigative journalism about the activities that those public officials perform. Therefore, the State must refrain to a higher degree from imposing limitations on these forms of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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