Ojo Público: Law on Personal Data Protection should not be used to censor journalists in Peru

The main objective of the creation of the Law on Personal Data Protection– enacted on July 11, 2013 and effective in all of its rules since May 8, 2015 – was to protect the personal data of those who feel vulnerable by its publication, like its comercial use by private companies, up to achieving the removal of news related to information in question from the internet.

However, Peruvian journalists fear that the recent application of this law sets a precedent of censorship for investigative journalism, which would undermine the rights of all journalists and Peruvian citizens to freedom of the press and access to public information.

This is the case of the Peruvian investigative news site Ojo Público, which was recently denounced by Judge Javier Villa Stein – former head of the Judicial Branch and current judge of the Supreme Court – who brought, under the protection of this law, a complaint against the organization.

Óscar Castilla, cofounder and executive director of Ojo Público, said in an interview with the Knight Center for Journalism in the Americas, “I think that the complaint from Villa Stein is clear evidence of the discomfort generated by the investigation into his financial assets as judge of the Supreme Court. However, so far we do not know the exact subject of his complaint. The National Authority for Personal Data Protection (ANPDP for its acronym in Spanish) just sent us a notification with a request for information and nothing more.”

So, it is unclear what exactly Villa Stein has made the complaint about, since the news site, as published on its website, learned of the judge’s suit on July 21 after receiving a notification from the Directorate of Supervision and Control (DSC or ANPDP) – an entity of the Directorate General for Personal Data Protection – without finding a formal complaint attached.

On March 16 of this year, Ojo Público published the story “The Supreme Patrimony of Judge Javier Villa Stein,” which formed part of the journalistic report “The Supreme Justices of the Million,” as a preview of the launch of the application Supreme Fortune. The aim of the latter is to monitor and analyze the rise in assets of the leading judges of the Supreme Court and of Lima in recent years.

For this set of reports, Ojo Público used public information, such as sworn statements that Villa Stein provided to the Comptroller General since he arrived to the Supreme Court in 2004.

In the notification, the DSC requested they deliver within ten days the complete recording of the telephone interview with Villa Stein, and a report of the contractual relationship with the author of the report, Elizabeth Salazar.

Despite not having receiving all the information that must accompany the DSC notification to Ojo Público, Castilla said “we are responding to them [this first week of August.]”

Villa Stein would have resorted to ANPDP because the report does not have any defamatory content, Castilla told the Knight Center. “The judge has not rejected the content of the interview that he granted to us,” he said.

Additionally, Castilla said that Salazar told Villa Stein that the interview was part of a report that Ojo Público was doing about his patrimony and that this would be published.

To that respect, the Peruvian lawyer Miguel Morachimo of the blog Hiperderecho, said that it appears that Villa Stein would be claiming unauthorized use of personal data, in this case, of his voice, on the publication of the interview to which he conceded.

“He is not questioning the meaning of the interview, nor does he deny having provided it; he simply doesn’t want his voice to be included,” Morachimo interpreted after reading the report of the case.

The law, Morachimo said, “is being used as a way to stop the spread of any content that, without being defamatory, the complainant just doesn’t want to be involved.”

The lawyer also told Ojo Público that the complaint filed by Villa Stein before the Ministry of Justice, four months after the publication of the report, is “unusual.” He noted with concern that this has happened soon after the law was put into effect.

According to Castilla, the underlying issue that worries Ojo Público, and that led them to make the complaint public, is that this case shows that “the law and the ANPDP could be used for things that detract from its [original] purpose. It [should] not be used to censor or discredit journalists. (…) This case should not have been admitted [by ANPDP].”

Regarding the law in question, the president of the Peruvian Press Council, Gonzalo Zegarra, previously told La República newspaper that this law is very tight and could affect the exercise of investigative journalism, whose job is to collect data. Also, he recommended that journalistic activity be exempted from its application.

Zegarra also said “today, journalistic investigation works with databases, so you cannot ask people for permission to access their personal information in order to investigate acts of corruption that have to do with the public interest,” he said.

Also, Castilla explained that the Law of Transparency and Access to Public Information – which allows reporting of stories such as those concerning patrimony that are of public interest – “clashes” with the Law on Personal Data Protection. The case of Ojo Público is a “clear example” of this, he added.

“How is this entity (ANPDP) operating? What state policies will be established to protect the press” Castilla asked.

Previously, in an editorial published in El Comercio on July 1 about the implementation of the Law on Personal Data Protection, Peruvian journalist and blogger Marco Sifuentes said that “in a country in which the institutional justice has proved to be, if not corrupt, at least ineffective, the ‘right to be forgotten’ is an oxymoron.”

That while the media, Sifuentes added, “need to be much more responsible” with their content, self-regulating, the Peruvian government “cannot become the great censor of the Peruvian network.” And that, he continued, all government “must understand that freedom of expression is only regulated with more freedom of expression.”

Sifuentes was referring to the case of Google Peru, which was sanctioned by the Directorate General for Personal Data Protetion of the Ministry of Justice, with a fine of more than 250,000 nuevos soles (about USD $76,000). It received the fine because it did not remove, from its search, information about the discovery of child pornography on the computer of a lawyer and university professor that had been denounced in 2009.

The professor was acquitted of guilt in 2012. Nevertheless, in 2015, and thanks to the Law on Personal Data Protection, the professor sued Google Peru for not having removed the information related to his case.

Note from the editor: This story was originally published by the Knight Center’s blog Journalism in the Americas, the predecessor of LatAm Journalism Review.