Mongabay reporter sued in what appears to be a pattern of legal intimidation by Peruvian cacao company

  • A Peruvian cacao company that sued a Mongabay Latam writer for reporting on its deforestation in the Amazon has also targeted others in what lawyers said appears to be a pattern of intimidation.
  • Tamshi, formerly Cacao del Perú Norte SAC, had its lawsuit against Mongabay Latam’s Yvette Sierra Praeli thrown out by a court in November.
  • A separate lawsuit against four environment ministry officials, including the one who led the prosecution of the company, has also been dropped, although it may still be appealed.
  • In a third lawsuit, environmental activist Lucila Pautrat, who documented farmers’ allegations against Tamshi, was handed a two-year suspended sentence and fine, but is appealing the decision.

In November 2020, Peruvian cacao company Tamshi filed a lawsuit against Mongabay Latam staff reporter Yvette Sierra Praeli for “aggravated defamation” over her reporting of a government investigation into the firm’s activities in the Peruvian Amazon. While the case was formally dismissed by a Peruvian court last month, it wasn’t the first time that Tamshi has taken such an approach.

Beyond this lawsuit, Tamshi (formerly Cacao del Perú Norte SAC) has engaged in what appears to be a pattern of legal intimidation against those reporting on or investigating their forest-clearing activities in Peru. The company, which produces the key ingredient in chocolate, is a former subsidiary of United Cacao.

High-resolution satellite imagery from September 2013 revealed large trees lying on the ground, which researchers say indicate the company cleared primary, or old-growth, Amazon rainforest to establish its plantations in Peru’s Loreto department.

Deforestation on the United Cacao plantation in 2013. Photo by Leoncio Ramirez via Panoramio.
Deforestation on the United Cacao plantation in 2013. United Cacao is the parent company of Cacao del Perú Norte SAC, which is now known as Tamshi SAC. Photo by Leoncio Ramirez via Panoramio.

Through financial disclosures and in public statements by United Cacao’s former CEO, Dennis Melka, the company claimed that nothing resembling forest remained by the time the company had purchased the land where the Tamshi plantations were established in 2013.

Alberto Yusen Caraza, an environmental prosecutor from the region of Loreto who works for the Public Ministry of Peru, opened an investigation into Tamshi in 2013 for “crimes against forests or wooded formations.”

During the trial in 2019 based on these claims, three Tamshi employees were sentenced to prison time for “crimes of illegal trafficking of timber forest products and aggravated obstruction of justice.” Additionally, the company was ordered to pay more than 15.7 million soles ($4.2 million) in reparations for damages to the ecosystem.

Satellite imagery reconstructing “the history in pictures of our forest” was used as evidence in the case, according to Julio Guzmán Mendoza, the state attorney for the Ministry of the Environment.

“The images proved that there was a forest in that place and that this forest was removed without authorization,” Guzmán told Mongabay, noting that analyses of the images confirmed the area contained “primary forest” before it was cleared.

A Landsat image shows the swift clearance for agriculture at the site of the plantation. Image courtesy of MAAP.
A Landsat image shows the swift clearance for agriculture at the site of the plantation between 2013 and 2014. Image courtesy of MAAP.

Satellite imagery shows “blow by blow” an area, largely undisturbed for decades, was razed by United Cacao between May 2013 and August 2014, according to Matt Finer, director of the Monitoring of the Andean Amazon Project (MAAP), a program of the organization Amazon Conservation. United Cacao deforested nearly 2,000 hectares (5,000 acres) of primary forest in the Peruvian Amazon to establish its Loreto cacao plantations.

“This is the definition of ‘not sustainable,’” Finer said. “From my point of view, it is not acceptable — and certainly not sustainable — to cut down standing forest, let alone primary forest, for large-scale agriculture.”

However, despite the evidence presented, all three sentences were overturned, and the fines were dismissed by the Superior Court of Justice of Loreto in December of 2019 upon appeal, effectively absolving the three employees and the company of the environmental crimes — a decision harshly criticized by environmentalists, scientists, civil society organizations and ministers.

“This sentence produces frustration … We expected an exemplary sentence,” Guzmán told Mongabay in a 2020 interview. “This is a serious blow to the fight against deforestation. Society was expecting a stronger sentence.”

Lawsuit against Mongabay Latam reporter Yvette Sierra Praeli

After the 2019 trial, Mongabay received a document revealing that Tamshi had asked, in a letter, for the public prosecutor, Caraza, to “excuse himself” from the case. Caraza originally opened the investigation against Tamshi in 2013 and was heavily involved in the case.

Mongabay Latam staff reporter Yvette Sierra Praeli published a story covering Tamshi’s request on July 16, 2020.

Four days after publication, Alonso Rey Bustamante, Tamshi’s legal representative, sent a notarized letter to Sierra Praeli and Mongabay requesting the article be corrected, claiming false statements were included in the publication.

Mongabay Latam then published an article responding to each of the points in Tamshi’s notarized letter. In one of the company’s points, for instance, Tamshi objected to the use of the word “deforestation,” saying the company had not been convicted of deforestation.

When referring to the trial, the Mongabay Latam article specified that the Tamshi workers were sentenced for the “crimes of illegal trafficking of timber forest products and aggravated obstruction of justice.” The word “deforestation” was used in the text because the Caraza, the official prosecuting the case, said that it was an emblematic case due to the magnitude of deforestation.

Deforestation refers to the removal of trees from an area of land, a term those observing the events have said — and evidence has shown — is clearly applicable to the context in which it was used in the story.

Deforestation on the Tamshi (formerly Cacao del Peru Norte) plantation. Image by Diego Pérez.
Deforestation on the Tamshi (formerly Cacao del Peru Norte) plantation. Image by Diego Pérez.

Tamshi’s legal representative also said that Mongabay Latam had “unlawfully” acquired the letter in which Caraza was asked to leave the case, but offered no evidence to substantiate such a claim. Mongabay Latam maintains that the document was lawfully delivered to Sierra Praeli by journalistic sources, which cannot be disclosed, according to the rights afforded in Peru’s Political Constitution.

Regardless, Tamshi formally accused Caraza of leaking the document to Mongabay. Sierra Praeli was called as a witness in a formal administrative process investigating the matter. It was after this process that Tamshi’s legal representative then filed a formal legal complaint against Mongabay contributor Sierra Praeli for the crime of “aggravated defamation” in the Criminal Court of Lima for her July 2020 article.

The original complaint was rejected by the court, but then accepted when Tamshi appealed the decision. The case was raised to the Superior Criminal Chamber. Sierra Praeli did not receive notification of the original complaint against her until the appeal was filed.

Tamshi’s legal argument hinged on the use of the word deforestation in the article. The lawsuit said this “false statement misinforms public opinion and unfairly generates a public rejection of Tamshi S.A.C.”

In the lawsuit, Tamshi added that the statements against them affected the image of the company in the national and international markets, public opinion, banks, its creditors and Peruvian society, “and that it affects 2,500 people who depend economically on Tamshi S.A.C. ”

“Deforestation is the loss of forest cover,” Guzmán, the state attorney for the Ministry of the Environment, told Mongabay. “In practical terms, in the colloquial language of ordinary non-specialists, talking about logging and talking about deforestation is the same.”

Guzmán added that Article 310 of the Penal Code, which addresses crimes against forests, could be applied to this case: “to whom, without permission, license, authorization or concession granted by the competent authority, destroys, burns, damages or cuts down the forest. When referring to cutting down the forest, another synonym is deforestation.”

Images from the same location one year apart at the plantation site reveal the deforestation that occurred. Image courtesy of MAAP.
Images from the same location one year apart at the plantation site reveal the deforestation that occurred. Image courtesy of MAAP.

On Sept. 17, 2021, the appeal hearing of the complaint filed by Bustamante, Tamshi’s legal representative, against Sierra Praeli was held for the alleged crime of aggravated defamation.

Carlos Rivera, Sierra Praeli’s lawyer, spoke for approximately 10 minutes to three magistrates at the Superior Court of Justice.

Lawyers for Tamshi did not appear at the hearing.

During the hearing, Rivera requested that the initial decision, handed down by the Criminal Court of Lima, be upheld. He noted that, in that ruling, the court dismissed the complaint against Sierra Praeli because it determined the published article did not contain criminal content but rather, “critical observations made in the exercise of freedom of expression.”

Rivera also said at the hearing that “There is no type of impact on the honor, reputation, dignity or qualities of the prestige of the company Tamshi.” Instead, he said, it was Tamshi that was “trying to use the justice to sanction the free exercise of two freedoms: freedom of information and freedom of expression.”

“The verdict in the first instance is not only a correct decision but also evaluates the main characteristics of good journalism,” Rivera told Mongabay. “It is also a matter of public interest without any type of injury to the honor or good reputation of the company,” he said, and added that it was “absolutely in accordance with the law.”

Rivera also said that these sorts of tactics were a way for companies to use judicial power “as a kind of stick against journalists.”

“This persecution of journalists by companies in recent times has become more and more frequent,” Rivera said. “We have at least eight to nine open cases. This means that a certain sector of politicians, senior officials, and people under investigation have found in the complaints a sort of doorway to pressure against journalism and to bring under those who defend freedom of expression.”

On Nov. 1, 2021, the Fourth Criminal Chamber of Lima ruled by majority to dismiss the claim of aggravated defamation against Praeli, ending the nearly year-long case.

Cacao fruits on the Theobroma tree, which are often grown on plantations. Chocolate comes from the beans inside. Photo by Gobierno Danilo Medina via Flickr (CC BY-NC-ND 2.0).

Lawsuit against environment ministry officials

Tamshi has also sued Guzmán for sharing documents used as evidence against the company in the 2019 case.

In February 2021, Tamshi filed suit against Guzmán for alleged procedural fraud and falsification of documents. The documents in question contained satellite images showing changes in forest cover in the area where the Tamshiyacu plantation is located.

“It is an act of intimidation,” Guzmán told Mongabay in 2020. “I am being sued for doing my job. And just as they do with me, they do with other prosecutors.”

Three other officials from the Ministry of the Environment were also named in the lawsuit and have been accused of an offense against the public trust for drawing up and reviewing the report.

“This is an unfortunate practice of intimidation against officials of the Ministry of the Environment who are simply doing their job and are generating evidence about the crimes of these companies,” said former minister Gabriel Quijandria, who left office in July this year when a new administration came to power. “It is absolutely unfair, and it is absolutely inadmissible that we have companies with these types of practices that are completely against ethics,” he told Mongabay.

In early November 2021, the provincial prosecutor’s office of Maynas province, in Loreto department, decided not to formalize and continue the investigation against prosecutor Guzmán and the other three officials of the Ministry of the Environment. The prosecutor’s office explained in its resolution that the report did not contain false information. However, this decision can still be appealed.

The Loreto Environmental Specialist Prosecutor's Office demonstrated that 1,950 hectares of primary forests had been cut down in Tamshiyacu. Photo: Diego Pérez.
The Loreto Environmental Specialist Prosecutor’s Office demonstrated that 1,950 hectares of primary forests had been cut down in Tamshiyacu. Photo: Diego Pérez.

Lawsuit against environmental defender Lucila Pautrat

In an earlier case, from June 2019, Tamshi filed a complaint against Lucila Pautrat for the alleged crime of aggravated defamation. Pautrat runs the NGO Kené, an environmental watchdog, and published two press releases on Kené website reporting the statements of farmers in criminal proceedings against Tamshi, as well as the accusations made against the company for alleged crimes against property.

On March 26, 2021, Pautrat was handed a two-year suspended sentence and ordered to pay 50,000 soles (nearly $12,300) by the Criminal Court of Lima. She has appealed against the sentence and requested that it be annulled.

Pautrat’s lawyer, Carlos Manuel Bravo Evaristo, says they demonstrated that the information she published was truthful.

“We presented evidence that each paragraph was supported by the complaints of the farmers who signed affidavits, as well as in a document where the Tamshi company recognizes what its judgments are,” Bravo Evaristo said. “However, when the judge analyzed the issue, he did not mention the evidence provided that proves the veracity of what was said in the press release.

“It is an act of intimidation [intended] to stop publishing news of public interest,” Bravo Evaristo added. “A lousy precedent for environmental rights and a very strong threat against environmental defenders, in a country where environmental defenders have even been murdered.”

“The satellite data and subsequent analyses leave little room for debate, and the case has proven that companies can no longer hide deforestation — as it is defined by science — in areas far from official scrutiny,” Mongabay’s John Cannon reported in a story earlier this year in which scientists refuted United Cacao and Tamshi’s claim that it did not deforest the region.

“Legal wrangling aside,” Cannon wrote, “the scientists familiar with the case harbor no doubts about what happened near Tamshiyacu, namely, that the destruction of closed-canopy rainforest that stood virtually undisturbed for decades is the definition of deforestation.”

A time-lapse animation reveals the sudden deforestation that occurred near the town of Tamshiyacu beginning in 2013. Image courtesy of Google Timelapse.

Editor’s note: In 2015, a law firm representing United Cacao Limited SEZC, Cacao del Perú Norte SAC’s parent company, threatened legal action against Mongabay for its reporting on the company’s forest-clearing activities.

Banner image: Global Forest Watch tree cover loss 2001-2021 set on Planet imagery on Tamshi’s property.