STF determines that the press can be held responsible for an interviewee’s speech

The Federal Supreme Court (STF) ruled this Wednesday (29) that newspapers may be held responsible for “proven insulting” statements made by interviewees against third parties. The ministers defined the thesis when analyzing an action presented by former deputy Ricardo Zarattini Filho, who died in 2017, against the newspaper Diário de Pernambuco.

In 1995, the outlet published an interview with police chief Wandenkolk Wanderley, also now dead, who accused Zarattini of participating in the bomb attack at Guararapes Airport, in Recife, which caused the death of three people in 1966. The former’s defense The deputy pointed out that the accusation was not true and asked for compensation in court. The Superior Court of Justice (STJ) accepted the request, but the newspaper filed an appeal and the case began to be processed in the STF.

The topic has general repercussion, therefore, the thesis applied by the Court must be assessed in similar judgments in lower courts. The analysis of the specific case began in the virtual plenary, but was taken to the in-person plenary, after the ministers disagreed on the definition of the thesis. The case’s rapporteur, retired minister Marco Aurélio Mello, and retired minister Rosa Weber spoke out against the conviction of Diário de Pernambuco.

In this afternoon’s session, the other ministers decided to support the thesis presented by Alexandre de Moraes, who combined excerpts from the votes presented by the President of the Court, Luís Roberto Barroso, and by Edson Fachin. The winning thesis mentions 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 accountability, 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 a intimate space 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 point out risk of censorship due to STF decision

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”.

“This is not an empty concern. Judicial harassment, as an abusive practice of using the Judiciary as a way to intimidate journalists and communicators, has also grown in the country. Data from the Ctrl + “The risk to the press in the hands of the STF” released this Tuesday (28).

“In the case of subsequent questions, the Federal Constitution itself provides for the right to reply. But this cannot be confused with the permanent threat of lawsuits resulting from one of the most important formats and instruments for journalism: interviews”, pointed out the entities.

“Attributing a responsibility that does not belong to the media outlets can force them, for example, to have to carry out prior control of the responses of their interviewees or to stop interviewing, especially live, many people, at the risk of having to face legal actions that can exhaust the resources of the media outlet or the journalist being sued”, they highlighted.

The Digital Journalism Association (Ajor), Instituto Palavra Aberta, Instituto Vladimir Herzog, Reporters Without Borders (RSF), National Federation of Journalists (Fenaj), Brazilian Association of Investigative Journalism (Abraji) and Association of Education Journalists (Abraji) signed the statement. Jeduca).