jurist questions request for cancellation of concession

The Federal Public Ministry (MPF) filed a public civil action, this Tuesday (27), to ask for the cancellation of three radio concessions granted to Jovem Pan. Prosecutors Yuri Corrêa da Luz and Ana Letícia Absy also ask that the company be condemned to pay approximately BRL 13 million for alleged collective moral damages for content broadcast, in addition to the compulsory dissemination of videos on the reliability of the electoral process and electronic ballot boxes 15 times a day for four months.

To justify the request, the attorneys cite the lines of commentators from the broadcaster, with criticism, for example, of the response considered insufficient by them by the Electoral Justice to questions about the safety of electronic voting machines; the political activism posture of some ministers of the Federal Supreme Court (STF), causing legal uncertainty; decisions considered abusive by Minister Alexandre de Moraes; and the posture of ministers of superior courts openly hostile to former president Jair Bolsonaro (PL).

In the petition sent to the Court, the prosecutors claim that the content aired is uninformative and would have undermined the trust of listeners in the democratic processes carried out in the country, in addition to having delegitimized constituted powers, especially members of the Judiciary and Legislative Powers. They also claim that the contents would have encouraged the population to subvert the political and social order.

On this topic, the People’s Gazette heard, exclusively, André Marsiglia – constitutionalist lawyer specialized in freedom of expression and press and member of the OAB-SP Press Freedom Commission. The jurist classifies the MPF’s request as “censorship” and “extremely serious”, and points out that any cancellation of concessions would be an unprecedented measure in the country’s democratic period.

Follow the interview:

What is the analysis that Mr. what do you do about the content of the MPF’s request against Jovem Pan? Are there abuses?

André Marsiglia: I understand that the MPF starts from a dangerous premise, taking alleged misinformation that occurred on the broadcaster’s schedule as an assumption that the entire broadcaster exists only and solely to convey disinformation. We are not talking about a request for punishment for disinformation, but for canceling the grant: something extremely serious and exceptional.

What would be the possible and adequate means for eventual penalization of the broadcaster?

André Marsiglia: The alternative is individualized punishment for uninformative conduct. The broadcaster could be held legally responsible for what its journalists say or write. The responsible editor is responsible for what the broadcaster broadcasts. The examination of individual conduct, without requesting cancellation of the grant, does not exclude the broadcaster from being punished, it only excludes the Public Prosecutor’s Office from making censorship requests.

Has the cancellation of radio and TV concessions already been used in a similar way in Brazil?

André Marsiglia: In our democratic period, it would be an unprecedented measure. Canceling grants is typical of authoritarian regimes, which control the press. If there is a risk to democracy resulting from the spread of disinformation, there is also a risk in believing that the MPF or the Judiciary must choose which vehicles can or cannot participate in the public debate.

Can this be considered another case of attempts to criminalize opinions, which have become frequent in the country?

André Marsiglia: It has been very common to accuse opinions of being uninformative, which is conceptually a mistake. Opinion is the subjective and particular expression about a fact, while informing is the expression of the fact itself. There is, in the opinion, no intention to inform. Logically, it cannot be considered uninformative.

Furthermore, misinformation cannot be confused with error. To give rise to punishment, it must contain the element of deceit, the deliberate intention to defraud public debate. Not only are we moving fiercely towards the criminalization of opinion, we are moving forward without understanding what opinion is.

Mr. Do you believe that in this case there could be an attempt to use Justice to remove from the game a vehicle that opens space, for example, to critical voices from prominent figures in the Judiciary?

André Marsiglia: I do not believe that there is a position of this or that body, this or that public agent in the sense of achieving a specific political purpose. I believe that the MPF is convinced of its legal reason for doing so. However, requests of this size inevitably end up disrupting an already polarized political environment. What we expect from the institutions is that they bring calm and sobriety to the debate.