Can you go to jail for slandering someone on social media?

If you are one of those who believe in contests where they give a luxury car to the first five who share an image on Facebook, or frequently post very direct hints to your "enemies" on social networks, this article will interest you.

Social networks help us to be connected and allow us to find out about the latest events worldwide. You can even find out first by searching a social network rather than waiting for publication in a local newspaper or news channel. Despite this, misinformation and bad faith of many people who take advantage of the massive use of these tools to achieve their tasks also abound on social networks.

An example of the misuse of social networks is the publication in groups of "WhatsApp" about one or more people, whose purpose is to discredit them and affect their honor. In Peru, honor is protected by defamation. According to article 132 of our Penal Code, defamation is a crime that is committed by someone who, before several people, attributes to a person an act, a quality or a conduct that could harm his honor or reputation.

This conduct is punishable by a custodial sentence of no more than 2 years and a 30 to 120 day fine. However, there are circumstances that aggravate the behavior and increase the sentence. One of them is when defamation is committed through the book, the press, or other means of social communication. In this case, the custodial sentence shall be not less than 1 nor more than 3 years and a fine of 120 to 365 days.

It is important to mention that the amount of the fine days is not the same as the amount of the economic reparation. Both are concepts of a different nature. The fine days are paid to the State for the damage generated by the crime, its nature is criminal and it is calculated based on the daily income of the convicted person. For example: if a person earns 3000 soles a month, per day he earns 100 soles (3000/30). That amount is the basis on which the total days fine is calculated.

On the other hand, economic reparation is an autonomous request presented by the injured party through civil channels and which usually adheres to the criminal complaint. Unlike the fine days, the economic reparation has no limits and its calculation depends on the damage and personal affectation that the victim can demonstrate.

Currently, it is not easy to determine if a conduct constitutes a defamation crime because the honor that the crime defends is a personal right, the scope of which depends on the subjective criteria of the person considered aggrieved.

For example: Jefferson Farfán announced that he will denounce defamation of Magaly Medina for calling her "horny" on national television. Mrs. Medina alleges that since the video of Farfán's current couple with another man was made public, all she did was speak a truth in a very colloquial term.

Along these lines, our Penal Code regulates assumptions that can avoid the criminal responsibility of the accused if he proves that what he affirmed is true. These assumptions are:

  • That the offended is a public official and the facts are about the exercise of his functions.
  • That there is an open criminal process where the facts are being investigated.
  • Make it clear that the author of the defamatory action has acted in the public interest or in self-defense.
  • That the complainant formally request that the criminal process continue until establishing the truth or falsity of the offenses attributed to him.

Notwithstanding this, there are those who criticize these assumptions because they consider them irrelevant to determine whether or not there is defamation. For this reason, in October 2006, the Supreme Court determined that other criteria should be evaluated when the right to honor collides with freedom of expression. These are:

  1. That a minimum standard of diligence is met.
  2. That regarding public figures, there must be a public interest.
  3. That the essential content of dignity is respected.

All these criteria must be taken into account in each defamation case, making the criminal process long and tedious for the parties. For this reason, a group of criminal lawyers have proposed that the crime of defamation be decriminalized so that it is regulated as a civil issue of economic reparation, which will prevent excessive protection of the right to honor from protecting other fundamental rights such as freedom of expression.

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Raul Artola
Raúl Artola is a lawyer from the University of Lima, Master in Public Management and Postgraduate in Mining Project Management from the Pontifical Catholic University of Chile. He currently serves as Head of the Legal Area at Energy Group, a Peruvian-American business group dedicated to the exploration, exploitation, distribution and transportation of hydrocarbons.

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