STF decision is vague and imposes self-censorship on newspapers, experts say

The presence of vague terms such as “concrete evidence” and “provably offensive” in a thesis consolidated by the Federal Supreme Court (STF) should generate self-censorship of press vehicles, according to experts. The Court defined the understanding that journalists will be held responsible for the statements made by interviewees, this Wednesday (29). Most likely, newspapers will avoid publishing content that could harm them or will be forced to carry out “police investigations” before publication.

According to the STF, the general rule implies that the interviewee himself must be held responsible for his speech. But newspapers will also be able to respond in court in “exceptional cases”, which were not well defined by the Court. For the ministers, the media outlets may be prosecuted if “at the time of disclosure, there were concrete signs of the falsity of the imputation” or if they did not observe “the duty of care in verifying the veracity of the facts and in disclosing the existence of such signs”.

“Concrete evidence is already contradictory in itself. If it is an indication, it is not concrete. If it is concrete, it is not an indication”, comments André Marsiglia, constitutional lawyer. He adds that “the STF’s own vision is almost childish regarding what the work of the press is”.

Master in Political Science and professor at Insper Fernando Schüler warns that the two criteria defined by the Court are subjective and create insecurity for the press. “There are historical problems in relation to freedom of expression when you condition it to criteria that can be interpreted multiple times. Who will judge if there was already information available five years ago for information to be contradicted and not published?”, he asks.

Former STF minister Marco Aurélio Mello stated that the decision hinders journalistic activities and “compels the newspaper to carry out a real investigation into what is true or not”. Before retiring, Marco Aurélio became the case’s rapporteur, opposing the accountability of newspapers.

Subjective criteria generate self-censorship

“In a controversial interview, the tendency is that people will not agree whether it is true or not. And there will probably be, in what has been said, a lot of truth and untruth. They will come mixed”, reinforces Schüler.

Professor Schuler points out that, in the real world, information is always imperfect. “Imagine that for each subject you need to do super investigative research. Newspapers are daily and work with information that is also always imperfect,” he says.

He explains that there are two ways to deal with this imperfection: either you assume that there will be control over the truth or that there will be contradiction in society and criticism will be made by everyone. And he adds that, historically, modern democracies rely on broad debate.

Marsiglia believes that the STF’s decision could generate self-censorship. “The established rule is impossible to apply. So, it is obvious that those involved will often prefer not to take the risk. This means that certain articles, interviews and statements will no longer be published”, he emphasizes.

With the difficulty in ensuring that information is not untrue, there will be a tendency for journalists to reproduce only the official versions. As happens in countries that are governed by dictators. “When the press expresses itself, it has the right – and even the duty – to make that information circulate and generate public debate”, considers Marsiglia.

There are sufficient legal instruments to combat crimes against honor in Brazil

“People forget that, in Brazil, there is well-established legislation on crimes against honor. Anyone who feels attacked by a placement or interview has the right to file a lawsuit for libel, slander and defamation”, recalls Schüler. Legal instruments to protect honor are fundamental for the exercise of freedom of expression, according to the professor.

Schüler considers the Supreme Court’s decision a “legal innovation” because instead of just prosecuting those who committed the insult, it can now also do so with the press vehicles that published information that attacks their honor. “The result this will produce is an exercise in self-censorship”, he concludes.

The new STF rule makes it clear that the possible accountability of journalists will take place in the civil sphere. But, as Marsiglia points out, vehicles can become targets of criminal proceedings if the journalist agrees, reinforces or highlights the ideas stated by the interviewee.

Accountability of big techs and communication companies

The Federal Supreme Court’s decision is similar to the understanding that the Court has been adopting since 2019 when ruling on freedom of expression. The judgment on the liability of big techs regarding demonstrations by their users on the platforms was postponed by the STF, but several ministers have already expressed their favor.

The body’s president, Luís Roberto Barroso, has already publicly defended that platforms should be penalized. Minister Alexandre de Moraes has also said that social networks should be equated to communication companies when it comes to accountability for the content disseminated.

Marsiglia does not agree with the analogy between big techs and media outlets made by Moraes. “The user and the press are in the same basket for the STF. This decision shows that the STF’s understanding is that those who speak out need to be limited in a stricter, more severe and even more aggressive way”, he concludes.