Brazil Uses Courts to Reimpose Prior Censorship on the Press

Brazil Extra's front page A judge in the Brazilian Northeast has forbidden a newspaper from publishing stories on a congress representative. These judicial actions barring publication of articles have become more and more common in Brazil, since the so-called "prior censorship" instituted by the military dictatorship has ended more than two decades ago.

Commenting on the last action, London-based freedom-of-speech organization Article 19 said that it is seriously concerned with the excessive use of very broad provisional injunctions (antecipação de tutela) preventing the publication of information, some of which may be in the public interest.

In the most recent case brought to Article 19's attention, a judge from the city of Maceió, in the Northeastern state of Alagoas, has prohibited local newspaper Extra from publishing any articles directly or indirectly related to congressman Olavo Calheiros.

"'Provisional' injunctions represent an extreme restriction on freedom of expression. Where applied prior to publication, they are a form of prior restraint which is completely forbidden under certain international human rights instruments.

"This amounts to setting up a system of prior censorship, with serious damaging effects to the free flow of information and ideas. When granted in very broad terms, irrespective of the subject of the future articles, they constitute an illegitimate restriction on freedom of expression," said Agnes Callamard, executive director of Article 19.

Freedom of press lawyers in Brazil have for long pointed out that "provisional" injunctions have been increasingly used to halt publication of information by the media, including information which may be in the public interest.

In the case of Extra, a civil defamation lawsuit was filed by  Calheiros against the newspaper following the publication of a series of articles related to the Calheiros family, comprised of influential politicians in the state of Alagoas. Congressman Olavo Calheiros also asked for a "provisional" injunction restraining the newspaper from publishing any further stories related to him.

Olavo Calheiros's brother, Renan Calheiros, is the president of the Brazilian Senate, currently on temporary leave from the Senate due to corruption allegations. Some articles have alleged that members of the Calheiros family have committed environmental crimes and have engaged in corruption and violence against workers.

On October 16, 2007, judge Maria Valéria Lins Calheiros issued a provisional decision preventing Novo Extra, the company that publishes Extra, from putting out any articles directly or indirectly related to the congressman.

According to Article 19, even where applied after the original publication, "provisional" injunctions should be used extremely rarely, and only where circumstances absolutely demand, such as if the plaintiff can demonstrate a virtual certainty of success.

In the case in question, the judge has prohibited the publication of any news articles related to the Congressman and his family. This is a particularly serious and illegitimate restriction on freedom of expression as it not only prohibits the newspaper from publishing a certain story or allegation, but any news on the individual in question.

Furthermore, the original publications, which prompted the injunction, may well have been in the public interest, as they included allegations of corruption. Finally, the provisional decision has also prohibited Extra from publishing any news articles mentioning Calheiros even before the newspaper was notified of the existence of a lawsuit or had the chance to present its defense.

It is now well established in international law that public officials should tolerate more, rather than less, criticism, and that provisional injunctions and other forms of restrictions, can never be justified to prevent the exposure of official wrongdoing or corruption. For instance, the Inter-American Court of Human Rights, has affirmed that:

"(I)t 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 has recommended that an audit be conducted of the seemingly excessive use of "provisional" injunctions by Brazilian judges, and of the terms of such injunctions, which appear far too broad to satisfy international standards on freedom of expression.

Public figures, including Calheiros, are urged to tolerate far greater scrutiny, and to refrain from using defamation suits in an excessive and sometimes abusive manner, thus undermining and silencing the free flow of information essential to good governance and democracy.

Article 19 is a human rights organization that works 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.

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