STF replicates Fake News PL and increases risk against the press – 11/30/2023 – Power

The decision of the STF (Supreme Federal Court) that approved the press’s liability for statements made by interviewees imported an expression from the Fake News PL that targeted internet platforms.

The measure, in the opinion of experts, increases the risk of judicialization surrounding reports, especially because the text approved by the ministers contains vague and generic expressions.

Delivered on Wednesday (29), the STF’s decision establishes that, “in the event of publication of an interview in which the interviewee falsely imputes the commission of a crime to a third party”, the journalistic company may be punished if two conditions are met.

The first is whether, at the time of disclosure, “there was concrete evidence that the imputation was false.” The second, if “the vehicle failed to observe the duty of care in verifying the veracity of the facts and in disclosing the existence of such evidence.”

The thesis has general repercussion, that is, it should serve as a parameter for judging similar cases across the country.

The statement written by the Supreme Court ministers does not define what the duty of care would be in the case of journalistic investigations.

The expression was central in the Fake News PL, which stalled in the National Congress and focused on regulating big techs.

In the most recent version of the project, duty of care obligations were described in a section that took up just over a page and a half.

It specified the crimes involved in the potentially illegal content on which the platforms should act and how their actions in relation to this would be assessed.

The STF’s general repercussion thesis, with two paragraphs, does not detail what is understood as a duty of care — the Supreme Court will still publish a ruling to detail the decision.

In his vote, Minister Luís Roberto Barroso, president of the court, even mentioned more details, which at least for now, have not yet been included in the collegiate’s formulation.

They would be: “observation, in the publication of the interview itself, that there are elements that contradict the imputation, that their veracity cannot be verified or is pending definition; (ii) granting of the right of reply or other form of contradiction or right rectification; or, even, (iii) publication of the matter with another version or with clarifications, even if later”.

In the STF’s jurisprudence research, one can today find the use of the expression “duty of care” in only seven rulings, three relating to motor vehicle accidents and none in relation to content.

In his vote, Barroso made an explicit parallel to the duty of care on platforms and in the press.

“The regulatory model that is based on a duty of care or due diligence on digital platforms in relation to the content they host has gained prominence,” he says in an excerpt.

“Despite the backdrop of the Digital Era and the challenges of freedom of expression in the environment of digital platforms as its main objective, I understand that this debate also has effects in relation to freedom of the press and the responsibility of the media in disseminating of illegal or illicit content.”

The very idea of ​​companies’ responsibility for third-party statements is in line with the logic used by minister Alexandre de Moraes when he deals with big techs, says lawyer André Marsiglia, PhD from PUC-SP.

It would be a kind of analogy: if the platform must be responsible for the users’ content, the press must be responsible for the illicit content of the interviewees.

In his assessment, such an analogy is not relevant, since, unlike individual expressions on social networks, freedom of the press would be a collective right, relating to the freedom to be informed.

For him, the thesis should intensify the processing of actions by people who felt offended by statements published in the press. “There will be a wave not only of actions but also of convictions,” he says.

Master and doctoral student at the University of Seville in the area of ​​freedom of expression, Marcelo Malheiros Cerqueira also assesses that the equation of press vehicles with platforms is not justified.

For him, the thesis published by the Supreme Court has, in addition to the “duty of care”, another very broad section, which deals with “concrete evidence” of the veracity of the facts.

“The definition of the truth of a fact is not always univocal, in many cases we will have fragments. Who is to say whether the investigation was sufficient or not?”

In Cerqueira’s assessment, the Supreme Court’s use of vague terms should maintain the current problem in judging cases on freedom of expression across the country: without clear criteria, judges have a wide margin of subjectivity.

This is what currently happens as a rule, shows recent research by Pleb – Research Group on Freedom of Expression in Brazil, from PUC Rio.

When analyzing decisions in Rio de Janeiro, the study showed differences of understanding between instances, and even very similar cases can have completely different outcomes, says Fábio Carvalho Leite, professor at PUC-Rio and member of the group.

He also assesses that there is the possibility of the STF’s thesis being interpreted restrictively in lower courts. It also highlights the use of generic terms, which make room for judges to maintain their discretion in analyzing the topic.