A dangerous precedent against investigative journalism occurred this Monday in Peru and involves one of the most powerful politicians and businessmen in the country, César Acuña, who sued investigative journalist Christopher Acosta last year for alleged defamation in the book Silver as a court (Random House, 2021). In addition to the journalist, the three-time presidential candidate also criminally denounced the director of the publishing house, Jerónimo Pimentel, and placed the publishing house as the third civil officer. Acuña wanted the three to pay him 100 million soles in reparation for the damage caused by the book, a sum that is equivalent to almost 25 million dollars, an unpayable figure for a publisher not only in Peru but in almost any corner of the world. This Monday a judge in Lima has just agreed with the powerful businessman from two universities and founder of the political party Alliance for Progress.
Acosta, Random House and Pimentel were convicted today of the “crime against honor, aggravated defamation” for about 30 sentences in the book on Acuña. “They are imposed two years of imprisonment” suspended, says the ruling. Although the defendants will not go to jail because in Peru there is no effective prison for sentences of less than four years, they cannot change their address without prior authorization from a judge, and they will be forced to go to a control office every 60 days. In addition, the ruling says, the two men and the publisher are obliged to pay César Acuña 400,000 soles (almost $ 100,000). The publisher, Acuña and Acosta announced that they will appeal the decision to go to second instance.
“We express our solidarity with the journalist,” said the Gustavo Mohme Llona Foundation, which works on the issue of freedom of expression. “We consider that the unjust sentence handed down against him should be reversed in the following instances. Justice should not be used as an instrument against freedom of expression and information ”, he added. The NGO Proética, which works against corruption, considered that with this ruling “it is seeking to intimidate investigative journalism.”
For their part, the Peruvian Press Council and the Peruvian National Association of Journalists rejected the ruling and “will request a visit from the IACHR Special Rapporteur for Freedom of Expression as soon as possible to investigate what happened in this judgment.” . The publishing house Penguin Random House in Peru said that “we found no factual or legal support in the ruling issued.” For now, they will appeal to a higher court.
The controversy of Silver as a court
The book Silver as Cancha It is an unauthorized biography whose title is a phrase by Acuña himself when he promised in a conversation that, if he became president, money (silver) like corn (field) would abound. “He is one of the most powerful people in the country,” Acosta explained to EL PAÍS last week, before the sentence was known. “He is a multimillionaire guy, owner of three private universities in the country, he has a television channel, a soccer team, several properties and vehicles, and he is the founder of his own political party that has several congressmen. His bench and his party are a wild card, they always adapt to the circumstances, sometimes their votes are key. That is where his political power lies, he ends up tipping the balance one way or the other ”.
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The unauthorized biography was published in February 2021 and César Acuña filed the lawsuit in May. The book had, according to the businessman, “at least 55 defamatory phrases.” Although the judge considered that some 20 of those did not correspond to defamation, his ruling in defense of Acuña in the other sentences leaves a worrying precedent.
The book cites several people or court documents that, among other things, point to the politician and businessman Cesar Acuña of plagiarizing university documents, embezzling public funds or being violent with his ex-wife. “One of the points in the book that particularly bothers Cesar Acuña is that it has revealed that three former secretaries of Vladimiro Montesinos identify him as one of those who visited the intelligence service, and these are statements that they give to the Congress of the Republic ”Says Acosta. “I’m not the one who says it, I’m the one who transcribes these testimonies, but Acuña transfers it to me.”
What is worrying about the ruling is that the judge who handed down a sentence today says that, if there has not been a conviction of the judicial system in many of these accusations, the honor of the businessman is violated. “There is no investigation completed” repeats the judge’s ruling several times when looking at the issue of the intelligence service and Montesinos.
This, according to international standards of freedom of expression, would go against the right of journalists to document complaints: no media could report the accusations that citizens make against public figures if a conviction is always to be expected. If people close to Montesinos pointed to Acuña in official documents, a journalist can cite these official documents.
In addition, what is striking about the 55 statements that bothered Acuña is precisely that many have been made by others, not the journalist, who accumulates in the book what family members or officials have said against the businessman for years in the media or in court. For example, according to the lawsuit, it is defamatory to have published the statements that Acuña’s ex-partner, Rosa Núñez, gave to the press for gender violence.
“It is reprehensible that the judge of the 30th Liquidating Criminal Court of the Superior Court of Justice of Lima, Raúl Rodolfo Jesús Vega, dismisses phrases used in the legitimate use of the textual quotation on the grounds that they have not been corroborated by reliable sources,” he said. in a statement the National Association of Journalists of Peru. “In a clear excess of his powers, Judge Raúl Jesús Vega has interpreted and set a dangerous precedent on which journalistic source is reliable or not. Under this conception, from now on, no journalist may cite third party statements at the risk of being sued for defamation. This curtails journalistic activity and, consequently, democracy ”.
“Legally, it is not required to prove the veracity of what other people have said about the person,” says Roberto Pereira to EL PAÍS, the journalist’s lawyer. “What is required is that the sources be credible, that they be identified, that they not be distorted, that in a few words a faithful report be made of what has been said.” Acosta also said that he sought Acuña in different ways to obtain his version of events – another of the requirements to make a faithful report – but did not receive an answer. In cases where he had publicly defended himself, he included it in the book.
“For me all this has a desire to punish,” says Acosta. “In the last 10 years I have published about this character, from how he administered his municipality when he was mayor to when he became a national figure. And I think that he sees this with a punishing desire, he knows that it is not the first time that I have published about him and that this is rather a compendium of what I have done for almost 10 years. “
“As a natural person, this is not an acceptable case,” says Jerónimo Pimentel before hearing the ruling on the accusation against him as director of Random House in Peru. “All the lawyers I have consulted say that this should not have been accepted, because to say that I am a co-author of all the books we publish is absurd. We have a catalog of 7,000 books in Peru. Would I be a co-author of the 7,000? It is a legal aberration ”.
“I believe, and this is my personal reading, that the publication of these research books is being made more expensive,” adds Pimentel. A lawsuit of this style requires enormous resources to defend itself, especially if it must go to second or third instance in the Supreme Court. “I think there is an attempt to intimidate not only journalists but also those who seek to publish journalists,” adds Pimentel.
“I have nothing, nothing, against journalism in general,” Acuña told the newspaper Trade in an interview before the ruling, in which he confessed not to have read the book, but to trust what his lawyer said. “I support freedom of the press, I am a defender of the press. But I will not accept that a journalist values my dignity ”.
The lawyers defending the book will appeal the decision, but for now, it will remain in circulation. Since it was published in February 2021, it has had six reissues, it has been one of the most read in bookstores in the country, and now it is going for its seventh edition.
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George Holan is chief editor at Plainsmen Post and has articles published in many notable publications in the last decade.