Global Voices Advocacy » Juan Arellano

Peru: Blogger Sentenced for Defamation of Former Politician

Juan Arellano — Thu, 04 Nov 2010 11:28:47 +0000

Blogger José Alejandro Godoy

On Friday, October 29th, the court's sentence was handed down [es] for the offensive libel suit brought by the former government minister and parliament member Jorge Mufarech Nemy [es] against the law school graduate and blogger [es]. The judge's ruling calls for a suspended sentence of three years imprisonment, commuted to a three-year probation as long as Godoy fulfills additional obligations: a payment of 350 thousand soles (approx. $125,000) and 120 days of community service. The reaction from the media and bloggers has been immediate [es].

The case began April, 14, 2009, when Godoy published a post [es] about the alleged threats made by Mufarech toward a parliamentary advisor. As a result, and as chronicled by the same blogger in another post from July 2009 [es], Mufarech sent him a notarized letter [es] requiring the removal of certain information because it was believed to be false. The claim was made on the basis of article 2, point 6 of the constitution of the Republic of Perú. If Godoy did not take down the information, Mufarech would take appropriate legal action. Godoy, instead of taking down the information, published comments by Mufarech on three cases where he had been charged with corruption. Godoy refused to take down the post (although what had been asked was only the removal of some information in the post) because he considered it at odds with freedom of expression. He also replied to Mufarech with a notarized letter of his own [es]. When faced with this in August 2009, Mufarech sued Godoy for a million dollars [es].

This is a key paragraph from the original post that sparked this legal firestorm:

Una de las mayores joyas políticas de la primera parte de esta década es Jorge Mufarech Nemy. Ex Ministro de Trabajo con Fujimori y ex parlamentario de Perú Posible, este político tres grandes perlas durante su gestión: evasión tributaria por la compra de un Jaguar, impulsar medidas arancelarias para favorecer a sus empresas, gestionar con José Francisco Crousillat mejores tratos de los inspectores laborales para América Televisión en los 90’s y, por supuesto, su persecusión contra Fernando Rospigliosi.

One of the greatest political stars of the first part of this decade is Jorge Mufarech Nemy [es]. The former Minister of Labor under Fujimori (a former President both celebrated and vilified in Perú) and former parliament member of the party Perú Posible, had three shining achievements during his watch: tax evasion on a Jaguar car purchase [es], pushing for import/export measures that favored his own companies [es], negotiating one of the best labor agreements in the 90's for América Telvisión with José Francisco Crousillat [es] (who among others in the 90's took large bribes to favorably report on the Fujimori regime) and, of course, his persecution against Fernando Rospigliosi and his allegations against Mufarech [es].

Curiously it wasn't even the main theme of the post (the threats against a parliamentary advisor) that caused the lawsuit, rather it was the assertions made about Mufarech's “shining achievements” while in office. The media and blogs have written that the lawsuit was because of the links added by the blogger to document what he said [es]. But this popular explanation isn't shared by everyone, especially among legal experts. The lawyer Miguel Morachimo writes in his blog Blawyer:

La Resolución declara la culpabilidad de Godoy porque considera que las utilización de las frases “joya” y “tres grandes perlas” respecto del querellante resultan difamatorias. Podemos discutir bastante sobre el fondo, pero no podemos negar que ese es el motivo que aparentemente sustenta la decisión. Para la Jueza, no importa que se hayan linkeado o no las noticias periodísticas correspondientes. Según su criterio, lo verdaderamente ofensivo no es que se mencionen las investigaciones por corrupción anteriores (lo que sí quedaría acreditado con los links) sino que se califique como una “joya” al querellante y que se diga que sus antecedentes judiciales son “tres perlas”.

The judge declared Godoy guilty because she considers the use of the phrases “star” and “three shining achievements,” in reference to the plaintiff, to be offensive libel. We can discuss this at length but we can't deny that this is the reasoning underpinning the judge's decision. For the judge, it doesn't matter if they were hyper-linked to actual published articles by journalists. According to her legal approach, the true offense isn't that prior investigations into corruption are mentioned (via links) but that the plaintiff is called a “star” because of the three past cases of corruption, introduced as “shining achievements”.

Blogger Morachimo, besides being against the sentencing because he feels it excessive (the official sentencing can be read here [es]), also discusses an important point. How will this judgment become a precedent for new, similar cases?

Lo que la Resolución dice es que se han colocado calificativos negativos a una persona con el ánimo de injuriarla. Por eso no toma el argumento del “reporte fiel” ni valora la libertad de la prensa para informar sobre hechos públicos, porque para la Jueza el problema no son los links sino los adjetivos con los que se presentan los links. Por ende, ese fallo no podría ser utilizado en otro proceso –ni como doctrina– para argumentar que uno es responsable del contenido difamatorio que puedan albergar otras páginas web a las que enlaza.

What the judge's decision says is that negative qualities have been associated with an individual with the intent to offend. The argument was not made for “reporting the truth” or valuing the freedom of the press to report on published facts, because for the judge the problem was not the links but rather the adjectives used to present them. Therefore, this ruling couldn't be used in another proceeding – not even as case law – to argue that one is responsible for the defamatory content that one links to on other websites.

Another law expert, Erick Iriarte, argues in his blog Lex Digitalis [es] that though he regrets this has happened to fellow blogger Godoy, it is necessary to recognize now what this will mean in determining if internet law will be treated like other communications mediums:

La sentencia es sobre la responsabilidad por los contenidos y publicados por Godoy … Podemos discrepar sobre la sancion y sus implicancias para las libertades de Godoy, sin embargo las mismas estan enfocadas en el tema del delito de difamacion, asi sea por internet o no …. Internet no es un mundo sin ley ni jurisdiccion. ¿Responsabilidad?, ese es la palabra a tomar en consideracion en toda la sentencia.

The sentencing is about responsibility for the contents and publications made by Godoy … We can disagree about the punishment and its implications for Godoy's freedom. However these penalties are the punishment for the crime of defamation, whether it be through the internet or something else …. The internet is not a lawless world without jurisdictions. Responsibility. That is the word that should be considered through all of this.

For Eduardo Gonzales from the blog La Torre de Marfil the ruling is unfair, and he gives some of the reasons for his opinion [es]:

… el Sr. Mufarech es una persona pública y en -la época de los hechos examinados por Godoy- era un funcionario cuyo ejercicio es de interés público, y que debía ser fiscalizado en forma libre y efectiva por la prensa. Godoy no había publicado en el artículo en cuestión nada sobre al conducta privada de Mufarech, sino sobre hechos que podrían indicar un mal uso del poder político. Considerar que Godoy difama a Mufarech por considerarlo un mal funcionario que tiene la extraña distinción de tropezarse con la ley y la controversia en varias ocasiones es un absurdo, y abre la puerta a que cualquier ciudadano sea reprimido por opinar negativamente sobre la conducta de los miembros del gobierno.

… Mr. Mufarech is a public person and, in the timeline of facts reviewed by Godoy, Mufarech was a functionary whose actions are of public interest, and that should be prosecuted in a free and effective manner by the press. Godoy did not publish anything about the private conduct of Mufarech in the blog post in question, yet the facts could indicate a misuse of political power. Considering that Godoy defamed Mufarech by calling him a bad government employee, and that has strangely caused him, on several points, to trip up with the law and controvery is absurd. It opens the door to any citizen being sued for a negative opinion on a government members' public conduct.

Another reason against the sentencing in blogger Gonzales's opinion:

la jueza ha aplicado mal la ley y ha mostrado una ignorancia incompatible con la importancia de este caso. En efecto, la Dra. Flor de María La Rosa no ha motivado su sentencia compulsando pruebas, examinando la defensa del querellado, analizando la doctrina, ni evaluando las posibles circunstancias eximentes de responsabilidad. … Sin duda, el derecho a la buena reputación es fundamental, pero pecan de ingenuidad quienes piensen que ese derecho debe, en toda circunstancia y de manera absoluta, imponerse sobre la libertad de expresión.

The judge misapplied the law and showed an ignorance unfathomable with a case as important as this one. In effect, Judge Flor de María La Rosa hasn't made her sentencing following libel tests, examining the defense of accused, analyzing case law, or even evaluating the possible extenuating circumstances of responsibility. … Without a doubt, the right to one's good reputation is fundamental but it would be too naive to think that this right should, in all circumstances, absolutely override the freedom of expression.

However Francisco Canaza from the blog Apuntes Peruanos, among several legal points he makes, argues against one of the assertions made by the previous blogger [es]:

8 – Otra argumentación se basa en la calidad de “funcionario público” del agraviado, lo que convertiría al agraviado en sujeto especial de fiscalización pública. Como ya se dijo, el agraviado a la fecha de sucedidos los hechos no era funcionario público.
10 – El procesado, según los actuados resumidos en la sentencia, no ejerció su derecho a aplicar la “exceptio veritatis”, mecanismo que permite al denunciado demostrar la verdad de las afirmaciones tachadas de difamatorias, para así evitar la pena.

8 – Another argument based on the outraged party's position as a “public functionary”, well, what would translate to outraged party in the special subject of public prosecution. As has already been said, the outraged party on the date of the blog postings wasn't a public functionary
10 – The guilty party, according to the current sentence summary, didn't exercise his right to call for “exceptio veritatis”, a legal mechanism that allows the accused to show the truth of their allegedly libelousor defamatory statements, and in that way avoid his current sentencing.

For his part, Silvio Rendón from the blog Gran Combo Club in an extensive post that discusses many details of the blogger, perhaps not details directly related to the case but necessary to understanding his background, and he also gives his opinion on the “defamation” topic [es]:

Es evidente que Godoy está presentando a su aludido como una persona de mala reputación. El texto que Godoy escribe no es la cita del título de la noticia que uno ve cuando va al enlace. Es un texto de plena autoría de Godoy. Es más, si uno hace click, por ejemplo, en el enlace “evasión tributaria por la compra de un Jaguar” no es este el texto que aparece, sino una noticia con otro título redactada en forma mucho más cuidadosa, … Si el texto de un bloguero es “fulano es corrupto” y está sombreado por un enlace que lleva a una noticia titulada “fulano está siendo investigado por corrupción”, la frase “fulano es corrupto” es del bloguero, no del autor de la página enlazada. El bloguero asume la responsabilidad de su frase.

It is evident that Godoy is presenting his subject as a person of ill repute. The text that Godoy writes doesn't cite the title of the news articles that one sees after going to the link. It is a text written under Godoy's full authority. What is more, if one clicked, for example, on the link “tax evasion on a Jaguar car purchase” it isn't Godoy's phrase that appears but rather a different title, much more cautiously written … If the words of a blogger are “so-and-so is corrupt” and it is supported by a link to a news article titled “so-and-so is being investigated for corruption”, the phrase “so-and-so is corrupt” is the blogger's, not the author of the linked article. The blogger assumes responsibility for his words.

Godoy will appeal the ruling as far as he can as the sentencing is clearly excessive to the crime committed. On Twitter the hashtag #fuerzagodoy is being used by those sympathetic to the recently sentenced blogger. As the story develops, we will keep you informed of changes and conclusion to this case.

By Juan Arellano · Translated by Stephen Cairns · Translation posted 4 November 2010

Telefónica Spain and Net Neutrality

Juan Arellano — Mon, 13 Sep 2010 11:00:19 +0000

Spanish Bloggers are once again discussing net neutrality, but this time the focus is not on the Google-Verizon´s agreement and their policy offer in the U.S, but on something much closer and of immediate effect to them: Telefónica (the largest telecommunications service supplier in that country) and its proposal to abolish the flat rate and to establish three types of services covered by the quality and use of user data.

Juan Varela, in his blog Periodistas21 explains [sp] the crux of the proposal that Telefonica has made to the Spanish Telecommunications Market Commission for new services that would replace the current ones and seek to:

Ultimately, replace the current open internet by a network of public access and other payment networks: digital platform access and premium content. A divided and more expensive internet. That's the objective of the telecommunications operators in order to enter more cash from the users and get their share of the business of online content and internet services, especially television and video downloads (P2P or direct) and internet telephony (VoIP), but also new offers from geolocation, augmented reality, telemedicine, etc.

He further states that “the prices and contracts are divided on the quality of contracted access and consumption taking place, when so far one only pays for the access technology and speed.” In particular the new classification of services would be like this:

The quality of real time (RT), the most expensive and the one that would ensure advanced services and high bandwidth consumption, is aimed at real-time multimedia applications.
Gold quality would be designed for enterprise environments without delay or data loss. In case of network congestion this data will take precedence over data from residential users.
Best Effort quality is mainly for private access to the Internet. Its only requirement would be delivery without error, but it does not guarantee optimal service quality for services of high consumption.

The media have also echoed this, informing in a tone that seems to show that they do not agree. For example Publico.es says: First step towards ending flat rate internet [sp], and Información.es titled their piece: Telefonica does not want to sell more ADSL flat rate to other operators [sp]. For its part, the daily El Pais refers to [sp] “the British subsidiary of Telefonica, has decided to put restrictions on all flat rate broadband plans for homes” in the UK.

But it is in blogs and citizen journalism sites where it is being written about the most. For example, Pau Llop of Bottup.com published an article titled Neutrality on the Internet: Will we let them take it away? [sp] where he says:

The debate, reinvigorated by Telefónica again, now focuses on rates: “who consumes more will pay more.” They propose to end with the flat rate with the absurd excuse that there are people who “uses the web a lot more” and others “who only look at their e-mail.” It is the first step. If we accept that thinking “who cares? I don't download movies”, the web will no longer be neutral in its first degree and soon will come the control of the web itself in the interests of business operators and their shareholders.

And then he proposes several actions we can take to raise awareness about this topic:

If you have a blog or other publication space, learn and write about the importance of Net neutrality.
If you use Facebook, Tuenti, Twitter, etc.., Write messages in favor of Net neutrality and pass links to documents, videos or news explaining the importance of their defense. If you receive such messages, share them with your friends on these networks.
When you hear on the news or on the radio something about it, discuss it with your companions and explain what net neutrality is and why it is so important. Do it in any conversation that you think fits the theme, do not limit yourself to the digital world.

The official agency response on the proposal made by Telefonica is still pending, but most bloggers think that if there is no awareness at all levels on what net neutrality really means it will be very easy for this proposal to end up being approved.

Other posts on this topic (in spanish):

De todo un poco: Idea contra la ruptura de la neutralidad de la red: nacionalización de la red de cobre
Error500: ¿Quién controlará el marketplace de los servicios premium en internet?
Nación Red: El debate sobre el final de la tarifa plana inflama la red y llega a los editoriales de la prensa más tradicional
Planeta Media: El Futuro de los Servicios Premium
Consultoría Artesana en Red: Internet, más que nunca antes, un derecho
Enrique Dans: Telecomunicaciones y futuro
Libertad Digital: Los límites a la tarifa plana
BandaAncha.eu

The image used as thumbnail was taken from Bottup.

Thanks to Silvia Viñas and Leila Nachawati for their help in the proof reading of the this post's translation from its original version.

Spaniard bloggers react to the Google-Verizon proposed policy

Juan Arellano — Tue, 17 Aug 2010 16:53:09 +0000

Spaniard bloggers have been very busy discussing and arguing about the recent Google-Verizon proposed policy for an open Internet. Most of them are against it because they consider it a very delicate subject because of the not so distant issue of the Sinde discussion when, “the Spanish Government announced at the beginning of December 2009 a proposal that may lead to shutting down websites that offer P2P file sharing of music and films, without the necessity of a court order.“

But some of you may not fully understand what Net Neutrality is all about, so we suggest that you take a look at this short video “that explains why discrimination on the Internet is a problem and will continue to be as long as net neutrality rules are not enforced“:

Rosa Jiménez Cano, a Spanish journalist and blogger wrote for the newspaper El País in an article called ¿Quién quiere acabar con la neutralidad en la Red? (Who wants to end net neutrality?):

What would you think if, when you open the faucet, the water reached your neighbor before you? And if paying an extra fee would allow somebody to see the goals of a match before anyone else? Or better yet, what if the electricity network gave preference to some appliances over others, so it could decide that the toaster has priority over a hairdryer or microwave? It sounds illogical, but it could be possible in the web.

It is true that a person can hire a different service of 3 megabytes or 10, for example. But that's not a competitive advantage. Following the faucet analogy, he would have pipes with more water flow, but water wouldn’t reach somebody before the rest. Or at least should not be given priority in the content queue. Simply, they will load faster because you have more bandwidth.

Last week, The New York Times leaked a meeting between Verizon (mobile operator) and Google in which they considered the possibility of an agreement between the two companies for priority access to certain content and services from Google. It would be logical, as YouTube (owned by Google) manages large amounts of data. Both companies were quick to deny it.

Another journalist, Juan Varela, is following the development of the issue in his blog Periodistas 21 with a post called Neutralidad de la red, no en las plataformas (Net neutrality, not the platforms):

Google and Verizon have finally submitted its proposal on net neutrality. The big search site and the telecommunications operator defend an open and public Internet, but exclude mobile networks of the principle of neutrality, as well as new digital platforms for advanced or premium service.

In short, they respect and adhere to the six principles of net neutrality by the Federal Communications Commission (FCC), but exclude mobile broadband and new digital platforms, which they have called Additional Online Services.

Everything indicates that the completely open Internet, with it’s Information is free mantra is ending. The new Internet will be more akin to paid TV. A plotted Internet with its plentiful market trimmed … The key will be to set the minimum and open Internet service. A universal civil right for everybody -innovators, entrepreneurs, companies, groups, associations, etc.-, without discrimination, to avoid ending its ability to socialize, to communicate, [share] ideas, politics, business and information that it has had so far.

But also there are some bloggers that do like the agreement. Daniel Rodríguez Herrera, writing for Libertad Digital finds it surprising that activists are talking about “an Internet for rich people and another one for poor people“. He also says:

On one hand, it keeps any type of traffic on the Internet from being blocked, or prioritized or anything like that. In other words, it eliminates that apocalyptic scenario, that bogeyman that scared neutrality activists. But on the other hand it allows companies to use their networks to offer other services different and separated from the Internet, both paid and unpaid; in other words, it lets them innovate to lead a return on their investments by taking these networks to our home. Also, it recognizes that on mobile networks things are fairly new and it proposes to leave them as they are, for now.

My main criticism of this agreement is that it is a proposal for the state to regulate the Internet.Governments should keep their dirty hands off the web, always and at all times, and leave it open as it has been so far.

Now, the activist's reaction is what has been really appealing. This agreement should represent their wet dream: one of the main companies commits to Internet still functioning like it has today, without blocking or paying priorities …. Since I don't think that the majority of neutrality activists are dumb, the only conclusion that I'm capable of reaching is that they have never attempted to avoid a [type] of traffic from being prioritized over another or anything similar to that. What they want is to be able to decide for themselves, through the Government, like networks that are the private property of a company should be managed.

Finally, there are positions like the one sustained by the blogger from error500, Antonio Ortíz, who with the name of his post: Google a la neutralidad de la red: “Quedamos como amigos” (Google toward net neturality: “Let's be friends”) gives us an idea of what he's going to say:

Finally, we should already be able to answer the question, does Google remain “one of us”? Have they betrayed the principles that underpinned its own development or have they sold out themselves to telecoms and Alierta doctrine? As some say with some relationships, “it's complicated.”

It is complicated because Google has maturity problems. It still loves the story of its teenage years, everything from “do not be evil”, “we love being open”, “life is not going to change us, we are not like others”. But it also begins to accept some adjustments to its principles with the reality of the markets. Its proposal reflects this dual soul of internet giant on net neutrality: they swear that they do not accept traffic discrimination by the companies in favor of who pays more, they believe in an “open internet”, they will never pay Verizon or any other provider for priority of its services over any other small startup. But of course there are exceptions to understand this so much openness and neutrality.

It is a way to break up as any other. “It's not you, it's me”, “I need some time”… at Google they have chosen a kind of “we’re still friends.” Those who expected a complete betrayal will feel somewhat disappointed, those who thought about a frontal or Byzantine resistance to telecommunications and some governments, even more. It will be the penance Google will have to pay: its previous traveling companions will identify it as a traitor in spite of its many good NGO children's rhetoric, its new allies will not hide the satisfaction to certify that, over time, Google and they are able to speak the same language

As an old song used to say… “only time will tell”.

The image used as thumbnail was taken from Wikimedia Commons and is used under the CC Attribution-ShareAlike 3.0 Unported license.

Thanks to Silvia Viñas and JP Schneider for their help in the translation of this post from its original version.

Peru: Attacks to human rights and freedom of expression

Juan Arellano — Sat, 13 Jun 2009 09:27:59 +0000

The bloody events in the Peruvian town of Bagua began when the police removed a road blockade of indigenous people protesting against a law (DL 1090) they believe undermines their ancestral rights to their territory. They have not just resulted in the death of an unknown number of civilians (the official figure is 10, but estimates from other sources range between 80 and 250) and 23 police officers, but have also triggered a wave of marches and protests across Peru in solidarity with the indigenous people. The majority of Peruvians seem to have just one answer to the question of who is responsible for these deaths: the government.

The government's only response appears to be repression. For example, a student protest in Lima was met by an unusual number of riot police and dispersed with tear gas. Plans have also been announced to clear a stretch of road (in Yurimaguas) this weekend, which continues to be blocked by protesters. Although the government has met with local indigenous leaders, some fear further bloodshed.

The mass media have stuck strictly to the official version of events, especially as they began to unfold, and therefore social media such as blogs and twitter (check hashtag #bagua) have become the principle source of alternative information. As there continues to be a great deal of disinformation about the situation, however, it might be better if this situation was reversed.

One event which has given many cause to think about the government's approach to the spreading of such unofficial information is the closing of Bagua's radio station, La Voz de la Selva, apparently for failing to submit correct documentation. The station had already issued a statement warning of its fears this may happen. Today, sadly, these fears were fulfilled, prompting an immediate protest campaign amongst broadcasters and academics. The station owners also plan to challenge the closure. The website Enlace Nacional has echoed the station's condemnation of torture and human rights abuses. It has also spoken out against the suspension of guarantees made by the government, and its prevention of a mass to commemorate the victims of the violence.

Another factor which demonstrates the intransigence of the government is the suspension of seven members of congress who had been speaking out in support of indigenous people. Finally, although the government has announced it will reopen dialogue with indigenous representatives, it refuses to include AIDESEP, the organisation which represents the majority of Peru's indigenous communities, but is also accused of radicalising them. The government ombudsman has spoken out against this decision.

At present, the general outlook for human rights and freedom of expression in Peru is not promising. It would be wise to alert the international community, asking them to send commissions and keep a careful eye on developments in Peru, before events escalate further and create a situation that the country will forever regret.

English translation from the original post in spanish by Tom Schrieber.