Criminal defamation suits in Peru and Chile could have chilling effect

New York, June 3, 2016 – Two criminal defamation suits filed against journalists by the president of Chile and a Peruvian governor could have a chilling effect on the press in both South American countries, the Committee to Protect Journalists said today.

The president of Chile, Michelle Bachelet, filed a criminal defamation suit against the magazine Qué Pasa on May 31 after the magazine published what it said were transcripts of telephone calls implicating her and members of her family in alleged influence-peddling. A spokesperson for the president said that Bachelet filed the case as a private citizen, not as the president, according to press reports.

In a separate case in neighboring Peru, the governor of Callao, Félix Moreno, filed a suit against the newspaper Perú21 and its director, Juan José Garrido, over a report detailing a state investigation into prosecutorial misconduct. The suit was filed on April 15, but the newspaper was only informed of the state court's decision to hear the case on May 16, according to Perú21.

"We urge Chilean President Michelle Bachelet and Félix Moreno, the governor of Peru's Callao province, to drop their criminal defamation suits," said Carlos Lauría, senior program coordinator for the Americas at CPJ. "Defamation should never be handled as a criminal matter, but the use of these outdated laws is even more egregious by public officials, who should be subject to a much higher level of scrutiny and criticism."

In February 2015, Qué Pasa published a story alleging that Caval, a firm owned by the president's daughter-in-law, may have improperly benefited from its owner's political connections in a 2013 real-estate deal. Bachelet, her son, and daughter-in-law have denied wrongdoing, according to press reports.

Bachelet filed the criminal defamation suit against the magazine on May 31, four days after it published transcripts of 2015 phone calls, recorded in a wiretap authorized by the judge presiding over the investigation, between real-estate developer Juan Díaz, who is also an influential member of the opposition Independent Democratic Union Party, and unidentified individuals, in which Díaz said that the president was a possible beneficiary of the deal, and that if he made the deal public she would have to resign.

Díaz's lawyer has denied his client is guilty of any crime in the case, according to news reports.

In a June 1 news press conference, Bachelet read a brief statement acknowledging that "a strong and mature democracy requires serious and rigorous journalism," and promising to "always support freedom of expression," but saying that she was "making use of the right to defend [herself]...from lies and defamation that affect the most precious thing that any person has: one's honor." She did not accept questions from the assembled journalists.

In a statement Qué Pasa published on its website on May 31, the magazine said it had edited parts of one of the transcripts, in order "to bring it in line with [its] editorial standards," but defended its reporting and condemned the defamation suit as an attack on press freedom.

In the Peruvian case, Moreno, the governor of the coastal region of Callao, filed a criminal defamation suit over an October 2015 report from Perú21 on the attorney general's investigation into four prosecutors and a judge who failed to investigate an allegedly illegal eviction Moreno had ordered as part of a land deal. He filed a criminal defamation suit against Perú21 director Juan José Garrido and sued the newspaper for 700,000 Peruvian sols [US$207,000] in damages, according to press reports. Article 99 of Peru's Criminal Code allows civil actions "against third parties when the judgment in the criminal jurisdiction does not extend to them."

Moreno has maintained there were no irregularities in the land deal, according to press reports. CPJ's telephone calls to his office seeking comment went unanswered.

CPJ has previously documented the use of outdated criminal defamation laws to circumscribe critical reporting in Peru. In February 2016 CPJ released a comparative study of defamation laws in the Americas at a conference in Peru. After the launch of the study, which was prepared for CPJ by the law firm Debevoise & Plimpton in collaboration with the Thomson Reuters Foundation, the president of the Peruvian congress proposed removing defamation penalties from the Peruvian Criminal Code.

Although criminal defamation cases have been less common in Chile, the country's Criminal Code still contains provisions that allow for jail sentences of up to three years for defamation.