The Bustamante Affaire reaches Nature magazine

Peruvian Biologist’s Defamation Conviction Overturned
– Lucas Laursen, Nature, January 12, 2011
A defamation case that hinges on a dispute over the presence of genetic modification in Peruvian maize crops, and that has attracted international attention, has moved back to square one – with a twist.
Biologist Ernesto Bustamante Donayre was last April found guilty of defamation – a criminal offence in Peru – for publicly criticizing a report published by a fellow biologist. Last month, however, the conviction was overturned: the appeal judge found that a lower court had not demonstrated that Bustamante had sufficient motivation to harm or defame his alleged victim. SNIP

The case began in 2008, when Antonietta Ornella Gutiérrez Rosati of La Molina National Agricultural University in Lima accused Bustamante, the scientific director of private genetic-screening firm BioGenómica, of defaming her by publicly criticizing a study she wrote and publicized that reported evidence of transgenic maize in Peru. SNIP
Gutiérrez, who did not respond to an interview request, may still take the suit to another lower court, although the appeals judge recommended that the case go to a pre-trial conciliation hearing first. SNIP… the National Institute for Agrarian Innovation (INIA) in Lima has tried to replicate Gutiérrez’s findings in Barranca but has failed to find genetically modified varieties of native maize, despite examining 162 samples.
“In the conciliation hearing I’ll most likely use that as a proof that what I said at that time was later found to be actually true,” Bustamante says. A finding in his favour will discourage other scientists from taking each other to court, Bustamante adds. “It would have been nice to have a judge come out and say, ‘Yes, science should not be taken to court’, but that’s not for lawyers to say. That’s for us scientists to state and to express and to fight for.”
See also
Science lives on in Peru

Written by David Tribe

David Tribe’s research career in academia and industry has covered molecular genetics, biochemistry, microbial evolution and biotechnology. He has over 60 publications and patents. Dr. Tribe's recent activities focus on agricultural policy and food risk management. He teaches graduate programs in food science and risk management as a Senior Lecturer in the Department of Agriculture and Food Systems, University of Melbourne.

5 comments

  1. Too bad we don’t have the text of the libel law involved. Here in the USA, speaking the truth is an absolute defense to an accusation of libel. But that’s in civil law.
    In Peru, where libel is a crime, it might well be the case that speaking maliciously is a crime even though what’s said is true.

  2. You will find it in Spanish at :
    http://www.unifr.ch/ddp1/derechopenal/legislacion/l_20080616_75.pdf
    The relevant articles are 170 et seq., more particularly (my translation):
    Art. 132.- Defamation
    Whoever, addressing himself to several persons, collectively or separately, but in a manner which allows the news to be spread, attributes to a person a fact, an attribute or a behaviour that may damage that person’s honour or reputation shall be punished by imprisonment for not more than two years and 30 to 120 day-fines.
    If the defamation refers to a fact under Article 131 (a false claim of offense), the penalty shall be imprisonment of not less than one and not more than two years and 90 to 120 day-fines.
    If the offence is committed by means of books, newspapers or other media, the penalty shall be imprisonment of not less than one and nor more than three years and 120 to 365 day-fines.
    Art. 133.- Atypical conducts
    There shall be no libel or defamation in the case of:

    2. Literary, artistic or scientific critique.
    I have perused the Penal Code and found that most provisions fall under the category of « delitos ». Many comments on the Gutierrez v. Bustamante case have referred to defamation as being a crime in Peru. The word ‘crime’ may be somewhat over-fetched and misleading.
    Furthermore, the statements made by Ernesto Bustamante in the press were quite heavy-handed. True, they responded to claims that were prima facie (and subsequently found to be) absurd. The original sentence was therefore not out ot order (in the sense that it was as reasonable an option for the judge as dismissing the complaint) for one may very well consider that Bustamante trespassed the limits of scientific critique (comments were in any event made in newspapers – but so were also the original claims). This makes the second-level decision to quash the first decision even more interesting. I am keen to see the reasons.
    By the way, we have a defamation case in France, with Séralini as the plaintiff. Judgement in a few days.

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