Abraji appeals STF decision that penalizes the press for interviews

The Brazilian Association of Investigative Journalism (Abraji) filed an embargo for a declaration with the Federal Supreme Court (STF) requesting changes to the thesis that determined that newspapers could be held responsible for “proven insulting” statements made by interviewees against third parties. The decision was approved unanimously in November last year.

According to Abraji, the STF’s thesis contains “generic terms” and does not take into account specificities of journalistic activity, such as the case of live interviews. And the association also pointed out that the decision leaves room for a “broad and dangerous interpretative spectrum”, which will be the responsibility of lower court judges.

“The impact of filing lawsuits and possible constitutional convictions – or even the simple unpredictability and lack of legal certainty of a thesis with general repercussions set out in generic terms – can be catastrophic”, reinforces Abraji.

If the thesis is not adjusted, Abraji also warns of the risk of “filing legal actions with the aim of inhibiting press freedom, which will automatically result in self-censorship of media outlets”.

The association also cited two “emblematic” cases published in the press that could be penalized with the STF’s new thesis. One of them is the interview with PTB president Roberto Jefferson to Folha de São Paulo in 2005, in which he made very serious accusations of a bribery scheme that later became known as Mensalão. “The Mensalão trial would drag on for months and sentence 25 people to prison. When Jefferson gave the interview, he did not offer any material evidence to support the accusations he made”, explains Abraji.

Remember the STF thesis

The winning thesis determines that the protection of press freedom “is enshrined in the binomial freedom with responsibility, prohibiting any type of prior censorship, but admitting the possibility of subsequent analysis and accountability”.

During the discussion of the thesis, minister Cármen Lúcia asked that the prohibition of prior censorship against press vehicles be highlighted in the text. Minister Cristiano Zanin requested the inclusion of the possibility of removing “proven offensive” content from platforms.

Moraes accepted the proposals and the thesis was defined as follows:

“Full constitutional protection for freedom of the press is enshrined in the binomial freedom with responsibility, prohibiting any type of prior censorship, but admitting the possibility of subsequent analysis and liability, including removal of content, for information proven to be insulting, defamatory, slanderous, lying , and in relation to possible material and moral damages, as the rights to honor, intimacy, private life and one’s own image form the constitutional protection of the dignity of the human person, safeguarding an intimate space that is insurmountable by illicit external intrusions”.

“In the event of publication of an interview in which the interviewee falsely imputes a crime to a third party, the journalistic company can only be held civilly liable if: (i) at the time of publication, there was concrete evidence that the imputation was false; and (ii) the vehicle failed to observe the duty of care in verifying the veracity of the facts and disclosing the existence of such evidence”, he concluded.

Entities representing the press expressed concern about the Supreme Court trial. For the category, “a decision by the STF that indiscriminately holds journalism responsible for what its interviewees say will have enormous consequences in terms of self-censorship and the dissemination of information that serves the public interest”.

New wording of the thesis suggested by Abraji

In the document delivered to the STF, Abraji presents a new wording for the thesis, in which it suggests the removal of the possibility of liability in cases of live interviews and debates, “even if they were recorded and can be viewed later”.

See the thesis proposal made by Abraji:

• Full constitutional protection for press freedom is enshrined in the binomial freedom with responsibility, prohibiting any type of prior censorship. In cases of interviews published by media outlets and in relation to the content stated by the interviewee himself, post-publication analysis is permitted to verify the possibility of exercising the right of reply under legal terms and possible civil liability, proportional to the damage that has been caused. proven, by false attribution of a crime to a third party, considering, in cases of liability of the media vehicle, its representatives and journalists the terms of item 2 of this thesis. This is because the rights to honor, intimacy, private life and one’s own image form the constitutional protection of human dignity, safeguarding an intimate space that is insurmountable by illicit external intrusions.
• Media outlets, their representatives and journalists are not civilly liable for the interviewee’s speeches, except in the event that the interviewee falsely imputes the commission of a crime to a third party, when the media company may be held civilly liable and jointly and severally with the interviewee if it remains proven that, at the time of publication: (i) the editorial manager was aware of the proven falsity of the imputation, choosing to publish it intentionally or, given the knowledge, through gross negligence; or (ii) it was a well-known fact, widely publicized and derived from an unappealable court decision, with the vehicle having committed intent or gross negligence, given the notoriety, in verifying the veracity of the fact; and (iii) the accused was not given the opportunity to give his version of the facts or the interview was not accompanied by the investigation of the false attribution of committing a crime;
• Cases of live interviews and debates are excluded, even if they were recorded and can be viewed later.”

The thesis suggestion was delivered to Minister Edson Fachin, rapporteur of the action filed by former deputy Ricardo Zarattini Filho, who died in 2017, against the newspaper Diário de Pernambuco, which generated the thesis applied by the Court.