Disseminate through the WhatsApp private conversations of a third person without their consent and without the public interest, with the sole purpose of highlighting the behaviors of this, that if they were known, they would mellar their reputation, it adapts to the alleged of fact required in fact inThe criminal type of defamation.
This has been indicated by the Supreme Court in the appeal for nullity No. 2273-2019-Lima.
Let's review the case
The confirmatory resolution of the sentence that resolved not to admit the complaint filed by the alleged commission of the crime against aggravated honor-dimension, provided for in the first and third paragraph of article 132 of the Criminal Code of the Code.
This article establishes that the typical behavior in the crime of defamation is to attribute a behavior to a person in front of several others who may harm his honor and good reputation.
Rights collision
The doctrine and jurisprudence recognize that, if the public interest is involved, it collides with the right to information and freedom of expression - which constitutes a cause of justification if it is in the budget provided for in article 20.8 of the Criminal Code.
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In that case, the likelihood of the fact or conduct attributed is important to then make a weighting judgment between the fundamental rights mentioned and establish whether there was excess in the exercise of a right or not.
In the specific case, the complainant acknowledges that these are conversations in WhatsApp he held with the husband of the complaint.
The reading of these, transcribed both in the demand and in the verification certificate that attached as a test element, evidence that these are conversations with sexual content in which both interlocutors not only allude to each other, but also thatThey make comments of such nature regarding their co -workers.
Right to privacy
It is obvious that these are private conversations without any public interest, so its diffusion would be at odds with the right to privacy of the complainant.In this sense, the veracity or falsehood of the fact or conduct that is attributed to it is irrelevant.
Likewise, the complaint does not intervene in the conversation of the audios, so it can be said to express false, equivocal and tendentious phrases against the complainant.
However, when they expose these through WhatsApp, it pretends that those who listen to them take conclusions regarding the existence of some relationship between the complainant and the husband of the complaint and that, in addition, they find out what both commented on theirco -workers, which could have an impact on the reputation of the complainant and in their relationship with their workmates.
These facts adapt to the criminal type of defamation.
Check the complete resolution here.