STF decision approves possibility of press liability for interviews

STF

Liability, which may include removal of content, would be for “information proven to be insulting, defamatory, slanderous, lying, and in relation to possible material and moral damages”

The Federal Supreme Court (STF) approved the thesis on holding journalistic outlets responsible for statements by interviewees who falsely attribute crimes to third parties, this Wednesday (29). The thesis was prepared by minister Alexandre de Moraes, with changes proposed by Luís Barroso, Cármen Lúcia and Cristiano Zanin.

The text says that “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 accountability”.

This liability, which may include removal of content, would be for “information proven to be insulting, defamatory, slanderous, lying, and in relation to possible material and moral damages”.

“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”, says the thesis approved by the Supreme Court.

This Wednesday’s judgment was provoking reactions from entities that defend freedom of the press and expression in the country.

Nine organizations, including Fenaj (National Federation of Journalists), Abraji (Brazilian Association of Investigative Journalism) and the NGO Reporters Without Borders, stated in a demonstration that there was a risk of “true and undesirable self-censorship” in Brazilian media outlets, depending on of the decision that ministers would take.

After the trial, the president of Fenaj, Samira de Castro, said that the thesis created now creates “a degree of accountability minimally consistent with our concerns regarding freedom of the press and freedom of expression”.

“This duty of care that the ministers cite is, in fact, the fact that you listen to the other side and leave space for contradictions to the extent that your interviewee imputes what is later called a false crime, [como] slander, insult and defamation”, says Samira.

According to her, this “opens space for responsible journalism, which ethically practices the right to contradiction.”

The specific case that gave rise to this action was already judged in a virtual plenary session (in which votes are published in an electronic court system) that began in 2020 and, due to interruptions, only ended in August of this year.

This specific case is a claim for compensation against the newspaper Diário de Pernambuco for an interview published in 1995. The STF upheld by 9 votes to 2 a conviction by the STJ (Superior Court and Justice) against the vehicle.

The case that reached the Supreme Court deals with the dispute between former deputy Ricardo Zarattini Filho, who has already died, against Diário de Pernambuco.

The former parliamentarian went to court against the newspaper due to an interview in which delegate Wandenkolk Wanderley, also now deceased, said that Zarattini had participated in the bomb attack at Guararapes Airport, in Recife, in 1966.

Zarattini’s defense maintained that the information is not true, that he was not indicted or accused for his practice and that he was not given space to exercise his right to reply.

The former deputy was defeated at the Pernambuco Court of Justice, but won the case at the STJ, with compensation for moral damages worth R$50,000.

The newspaper appealed to the Supreme Court. Diário de Pernambuco’s defense stated that the STJ’s decision goes against press freedom and that the conviction was due to the mere publication of the interview, without any value judgment.

He highlighted the relevance of the case from a legal and social point of view and that the actions of the media outlets are at stake, given the risk of limiting the constitutional exercise of press freedom.

Despite having maintained the newspaper’s condemnation, the ministers had not yet decided on the thesis that would be valid for other similar cases. This discussion was scheduled for this Wednesday’s session, with the approval of the thesis.

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