Brazilian Professor Emir Sader was sentenced in October 2006 to one year in prison for an Article published online in May 2005, in which he accuses Santa Catarina state's Senator Jorge Bornhausen (from the PFL party renamed to Democratas) of being elitist, bourgeois, fascist and racist. Sader was also dismissed from his position as a professor with the Federal University of Rio de Janeiro.
Since then Bornhausen, who for a time was the president of his party, has left the senate after finishing his eight-year old mandate.
Commenting on the story, Agnes Callamard, executive director of Article 19, a London-based human rights organization, condemned Sader's conviction.
"Article 19," Callamard said, "urges the São Paulo Court to abide by Brazil's international obligations in the area of freedom of expression and acquit Professor Sader. Criminal defamation is an unjustifiable limitation on freedom of expression, particularly when it results in excessive and disproportional sanctions as in the case of Professor Sader."
During a seminar with entrepreneurs in August 2005, Senator Bornhausen was asked if he was unhappy with the political crisis then faced by the country, to which he replied that, on the contrary, he was happy because "we would be free from this race for the next 30 years", referring, as he later confirmed, to politicians from the Worker's Party (President Lula's party).
In response to this statement, Professor Sader published an article on the website of the news agency Carta Maior (where he is a columnist) in which he accused Senator Bornhausen in the terms above mentioned.
Reacting against the article, Bornhausen filed a criminal defamation lawsuit against the professor, based on the defamation provisions of the 1967 Press Law.
After reviewing the case the judge sentenced Professor Sader to the maximum sanction foreseen for defamation in the Press Law and, in addition, held that Mr. Sader had taken advantage of his position as a well-known university professor and had abused his position as civil servant.
As a consequence, the judge also sentenced Professor Sader to dismissal from his position as a professor with the Federal University of Rio de Janeiro. The prison sentence was converted (due to compulsory legal provisions) to community service for 8 hours a week for the same period.
The judge stressed that the plaintiff's prominent position as a Senator should be taken into consideration when analyzing the case, increasing the "wrongdoing" caused by the published offenses.
The São Paulo Court has reviewed and dismissed on June 15 the appeals in the case. Both plaintiff and defendant, as well as the Public Prosecutor's Office, have questioned the judge's decision.
Article 19 considers criminal defamation to constitute an unjustifiable limitation on freedom of expression. This position is shared by the OAS Special Rapporteur on Freedom of Expression, who has stated that "criminal defamation is not a justifiable restriction on freedom of expression; all criminal defamation laws should be abolished and replaced, where necessary, with appropriate civil defamation laws."
Article 19 also disagrees with the judge's arguments concerning the application of greater protection to the reputation of public officials such as elected senators. International human rights courts have consistently held that public officials should tolerate more, not less, criticism than ordinary citizens. The Inter-American Court of Human Rights, for example, stated that:
"It is logical and appropriate that statements concerning public officials and other Individuals who exercise functions of a public nature should be accorded, in the terms of article 13(2) of the Convention, a certain latitude in the broad debate on matters of public interest that is essential for the functioning of a truly democratic system . . .
"A different threshold of protection should be applied, which is not based on the nature of the subject, but on the characteristic of public interest inherent in the activities or acts of a specific individual.
"Those individuals who have an influence on matters of public interest have laid themselves open voluntarily to a more intense public scrutiny and, consequently, in this domain, they are subject to a higher risk of being criticized, because their activities go beyond the private sphere and belong to the realm of public debate."
Article 19 is an independent human rights organization that works globally to protect and promote the right to freedom of expression. It takes its name from Article 19 of the Universal Declaration of Human Rights, which guarantees free speech.