October 26, 2020

Peru: A Preliminary Report on Proceedings Against Journalist Paola Ugaz

Background

Ms. Ugaz is a prominent Peruvian investigative journalist and co-author of Half-Monks, Half Soldiers, a 2015 book that alleged a pattern of sexual, physical, and psychological abuse within the Sodalitium Christianae Vitae (SCV), a Peruvian Catholic lay organization. In 2016, Ms. Ugaz won Peru’s National Grand Prize for Journalism for her reporting on the SCV, which included the extensive documentation of victim testimonies. [2] Since publishing the book, Ms. Ugaz has continued to investigate the SCV and plans to publish a second book on the organization’s alleged financial misdoings. [3] As a result of her reporting, Ms. Ugaz is facing several defamation complaints before both criminal and civil courts, all of which were initiated by private parties affiliated with or supportive of the SCV. [4] According to Ms. Ugaz, she has also received continuous online harassment [5] and death threats.

In September 2019, Luciano Revoredo Rojas – a former candidate for the legislature and the director of the Catholic news and commentary website, La Abeja – filed a criminal defamation suit against Ms. Ugaz under Article 132 of Peru’s Criminal Code. In the Peruvian system, private citizens can file complaints regarding certain offenses, including criminal defamation, without the participation of a public prosecutor.

Article 132 provides for a sentence of up to two years for “spreading news [that] attribute[s] to a person, an event, a quality or behavior that may damage his honor or reputation.” [6] Mr. Revoredo has alleged that Ms. Ugaz is liable for aggravated criminal defamation, which carries a sentence of up to three years, [7] because her defamatory remarks were “spread” via mass media. Mr. Revoredo’s complaint is based on comments that Ms. Ugaz made in three 2019 interviews. [8]

Specifically, in two television interviews Ms. Ugaz remarked that La Abeja had covered the litigation initiated by the SCV in a defamatory manner. [9] In one of the television interviews, Ms. Ugaz also stated that the coverage had been misogynistic: “there is a campaign being waged through defamatory networks against women journalists, especially because with female journalists there is a sort of, I don’t know, a disposition . . . a lot of male chauvinism.” [10] In a third interview for a news article, Ms. Ugaz stated that La Abeja and Mr. Revoredo had “call[ed] [her and colleagues] ugly, fat, ignorant, and that we have a plan against the Catholic Church.” [11] Notably, La Abeja is known for defending the SCV and denouncing Ms. Ugaz. The website has “accus[ed] the journalists of attacking the Catholic church, [and] of having connections to “Arab interests” in Peru, and [has equated] their reporting practices to Nazi propaganda.” [12]

Ms. Ugaz is not the only journalist in Peru to face intimidation related to her work. Reporters Without Borders has noted that “the main threat to media freedom in Peru comes from the defamation laws, which often lead to journalists being threatened, investigated, and prosecuted.” [13] According to the Committee to Protect Journalists, “Peru’s criminal defamation laws are consistently weaponized against critical investigative journalists by powerful individuals or entities, from corrupt politicians to the Catholic Church, who want to prevent them from bringing certain stories to light.” [14]

On September 21, 2020, the first hearing in Ms. Ugaz’s case was held before the Ninth Criminal Court of Lima, wherein Mr. Revoredo’s attorney and Ms. Ugaz’s attorney presented preliminary arguments. [15] On October 27, the court will determine whether there is sufficient evidence for the case to proceed. In addition to requesting that Ms. Ugaz be imprisoned for three years under Article 132, [16] Mr. Revoredo has alleged approximately US $56,000 in damages. [17]

Criminal Prosecution of Speech Offenses

The International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (American Convention) guarantee the right to freedom of expression. [18] The charges against Ms. Ugaz violate her right to freedom of expression.

Under the ICCPR, restrictions on freedom of expression must: i) be prescribed by law (the legality principle); ii) serve a legitimate objective; and iii) be necessary to achieve and proportionate to that legitimate objective. [19] The ICCPR lists public morals, national security, and the rights and reputations of individuals as legitimate objectives; [20] the same objectives are deemed permissible within the Inter-American system. [21]

As stated by the United Nations Human Rights Committee – the body charged with monitoring implementation of the ICCPR – in order to comply with the principle of legality legislation must be “formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly . . . [and] may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.” [22] Further, a restriction “violates the test of necessity if the protection could be achieved in other ways that do not restrict freedom of expression.” [23] The necessity requirement overlaps with the proportionality requirement, as the latter means that a restriction must be the “least intrusive instrument amongst those which might achieve their protective function.” [24] In this vein, laws cannot be overbroad.[25]

The Inter-American system imposes similar requirements. The Inter-American Court of Human Rights – the judicial body charged with interpreting articles of the American Convention – has ruled that individuals may only be subject to sanctions for speech offenses if the grounds for liability are “express and precise.” [26] Moreover, the restrictions applied must possess legitimate aims and be necessary to ensure such aims are achieved. [27]

With respect to defamation cases, both the UN Human Rights Committee and Inter-American bodies have clear jurisprudence. As stated by the Committee, “the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.” [28] The Inter-American Declaration of Principles on Freedom of Expression assert that “[t]he 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.” [29] According to the Inter-American Commission, which monitors the human rights situation in the Americas, including compliance with the American Convention, the criminalization of such speech is “a disproportionate punishment compared to the important role that freedom of expression and information plays in a democratic system.” [30] To the extent the charges have been brought by a private person, the UN Human Rights Committee has highlighted States’ obligation to ensure that individuals “are protected from any acts of private persons or entities that would impair the enjoyment of the freedoms of opinion and expression.” [31]

More broadly, Inter-American bodies [32] as well as the UN Special Rapporteur on the promotion and protection of the right to freedom of expression and opinion (Special Rapporteur on Freedom of Expression) have found that only the gravest of speech offenses should ever be criminalized: child pornography, incitement to terrorism, public incitement to genocide, and advocacy for national, racial, or religious hatred. [33]

Notably, speech that contributes to public discourse is worthy of heightened protection. As stated by the UN Human Rights Committee, for example: “the value placed by the Covenant upon uninhibited expression is particularly high in the circumstances of public debate in a democratic society concerning figures in the public and political domain.” [34] The Inter-American Court has similarly commented: “there should be a reduced margin for any restriction on political debates or on debates on matters of public interest.” [35] In the words of the Inter-American Commission: “States have less room to impose restrictions on freedom of expression . . . [on] speech concerning political debate or debate on matters of public interest—due to the need for a broader degree of openness for the wide-ranging debate required in a democratic system and the citizen oversight inherent in it.” [36]

With respect to the present case, Ms. Ugaz’s commentary concerned matters of public interest: the alleged abuse perpetrated by the SCV and a popular news site’s coverage of her reporting on this alleged abuse and the site’s corresponding treatment of female journalists. Such topics were already the subject of public debate. Indeed, in 2016 Al-Jazeera released a documentary on alleged SCV misdeeds (Ms. Ugaz has been criminally and civilly sued for an interview she gave in the documentary). [37] Given that Ms. Ugaz’s reporting on the SCV was of interest to society and contributed to ongoing public debate, her speech warranted heightened protection.

Further, her potential prosecution fails to meet the requirements established under the ICCPR and the American Convention. Article 132 of the Criminal Code of Peru provides for a sentence of up to two years for “spreading news [that] attribute[s] to a person, an event, a quality or behavior that may damage his honor or reputation” and up to three years for the offense in its aggravated form. [38] Without examining whether Ms. Ugaz’s remarks were false or defamatory, it is not alleged within the criminal complaint that they amounted to incitement to violence or another offense of sufficient gravity to warrant criminal charges. As made clear by both the UN Human Rights Committee and Inter-American bodies, criminal prosecution is an unnecessary and disproportionate response to defamation, particularly with respect to public figures or private individuals working on matters of public interest. Mr. Revoredo is a private individual working on matters of public interest: he has injected himself into public debate, appearing to use La Abeja as a platform to criticize Ms. Ugaz’s reporting and defend the SCV. Additionally, Mr. Revoredo is seeking a term of imprisonment – a result the UN Human Rights Committee and Inter-American bodies have expressly held is incompatible with the right to freedom of expression. In light of the above, the ongoing case impermissibly restricts Ms. Ugaz’s right to freedom of expression. The court should dismiss the case.

Article 132, the law under which Ms. Ugaz could be prosecuted, is likewise inconsistent with the right to freedom of expression. While the government has a legitimate objective in protecting the rights and reputations of others, Article 132 contravenes the legality requirement: the provision is vague and does not specify what it means to “damage” someone’s honor or reputation. Due to this ambiguity, Article 132 confers “unfettered discretion” on the authorities. The Inter-American Court and Commission have criticized similarly “imprecise” criminal defamation laws for violating the right to freedom of expression. [39] With respect to the necessity and proportionality requirement, Article 132 is far from the “least intrusive instrument” available: its scope is broad, lacking limiting elements such as intent, falsity, or subject matter. As a result, the provision potentially encompasses a wide range of protected speech. Finally, in contravention of the ICCPR and American Convention, Article 132 broadly authorizes criminal penalties for defamation. As documented by Reporters Without Borders and the Committee to Protect Journalists, private citizens have used criminal defamation complaints to intimidate and harass journalists such as Ms. Ugaz. In line with its international and regional treaty obligations, Peru should review and reform Article 132.

As part of the TrialWatch initiative, the Center will release a full Fairness Report upon the conclusion of the case, should it proceed.

[1] This report was prepared by staff attorneys of the American Bar Association Center for Human Rights and reflects their views. It has not been approved by the House of Delegates or the Board of Governors of the American Bar Association and therefore should not be construed as representing the policy of the American Bar Association as a whole. Further, nothing in this report should be considered as legal advice in a specific case. Additionally, the views expressed in this report are not necessarily those of the Clooney Foundation for Justice.

[2] Press Release, Amnesty International, VALIENTE: Hostigados por Denunciar Abusos en el Sodalicio de Vida Cristiana [Courageous: Harassed for Reporting Abuses in the Sodalitium of Christian Life] (Apr. 5, 2019), https://amnistia.org.pe/noticia/valiente-abusos-sodalicio-hostigamiento/.

[3] Elise Harris, Peruvian Journo’s Legal Woes Expand for Reporting on Controversial Lay Movement, Crux (Dec. 16, 2019), https://cruxnow.com/church-in-the-americas/2019/12/peruvian-journos-legal-woes-expand-for-reporting-on-controversial-lay-movement.

[4] Press Release, Inter-American Press Association, IAPA Deplores Legal Harassment Against Peruvian Journalist Paola Ugaz (Jan. 3, 2020), https://en.sipiapa.org/notas/1213660-iapa-deplores-legal-harassment-against-peruvian-journalist-paola-ugaz. See also Elise Harris, supra note 3.

[5] Inter-American Press Association, supra note 4.

[6] Código Penal [C. Pen.] [Criminal Code], art. 132 [Peru].

[7] Id.

[8] Committee to Protect Journalists, Investigative Journalist Paola Ugaz Faces Criminal Defamation Suit in Peru (Sept. 22, 2020), https://cpj.org/2020/09/investigative-journalist-paola-ugaz-faces-criminal-defamation-suit-in-peru.

[9] Luciano Martin Revoredo Rojas, Criminal Defamation Complaint, September 2019 [unofficial translation].

[10] Id.

[11] Id.

[12] Committee to Protect Journalists, supra note 8.

[13] Peru, Reporters Without Borders, https://rsf.org/en/peru (last visited Oct. 17, 2020).

[14] Elise Harris, Peruvian Law Being ‘Weaponized’ Against Journalists, Watchdog Group Says, Crux (Dec. 18, 2019), https://cruxnow.com/church-in-the-americas/2019/12/peruvian-law-being-weaponized-against-journalists-watchdog-group-says.

[15] Committee to Protect Journalists, supra note 8.

[16] C. Pen., supra note 6, at art. 132.

[17] Criminal Defamation Complaint, supra note 9.

[18] ICCPR, art. 19; American Convention, art. 13.

[19] ICCPR, art. 19. See also Human Rights Comm., Kim v. Republic of Korea, U.N. Doc. CCPR/C/64/D/574/1994, 1999, ¶ 12.2.

[20] Id.

[21] American Convention. art. 13(2).

[22] Human Rights Committee, General Comment No. 34, U.N. Doc. CCPR/C/GC/34, September 12, 2011, ¶ 25. See also UN General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of expression, U.N. Doc, A/74/486, October 9, 2019, ¶ 6.

[23] Id. at ¶ 33.

[24] Id. at ¶ 34.

[25] Id.

[26] Inter-American Court of Human Rights, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985. Series A No. 5, ¶ 39. Annex A.

[27] Id.

[28] General Comment No. 34, supra note 22, at ¶ 47.

[29] Inter-American Special Rapporteur for Freedom of Expression, Background and Interpretation of the Declaration of Principles Principle 10, The Special Rapporteur on Freedom of Expression of the Organization of American States has asserted that. Emphasis added. See also Inter-American Court of Human Rights, Herrera-Ulloa v. Costa Rica, Judgement of July 2, 2004. Series C No. 107, ¶¶ 128–129.

[30] Id. at ¶ 43.

[31] General Comment No. 34, supra note 22, at ¶ 7 (citing Human Rights Comm., General Comment No. 31, U.N. Doc. CCPR/C/GC/31, May 2004, ¶ 8; Human Rights Comm., Gauthier v. Canada, U.N. Doc. No. 633/1995, April 7, 1999).

[32] See Inter-American Special Rapporteur for Freedom of Expression, Report on the Compatibility of “Desacato” Laws with the American Convention on Human Rights ¶ 19, http://www.oas.org/en/iachr/expression/showarticle.asp?artID=442&lID=1#_.

[33] UN General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, U.N. Doc. A/66/290, August 10, 2011, ¶ 40.

[34] General Comment No. 34, supra note 22, at ¶ 34.

[35] Inter-American Court of Human Rights, Herrera-Ulloa v. Costa Rica, Judgement of July 2, 2004. Series C No. 107, ¶ 127.

[36] Inter-American Commission on Human Rights, Tulio Alberto Alvarez v. Venezuela, Case No. 12.633, January 26, 2017, ¶¶ 60–61.

[37] Harris, supra note 3.

[38] C. Pen., supra note 6, at art. 132.

American Bar Association TM American Bar Association

Background

Criminal Prosecution of Speech Offenses