Courts Often Restrict Press Freedom in Brazil

Folha de S. Paulo front page During a recent public hearing of the Inter-American Commission on Human Rights at the Organization of American States (OAS), in Washington, DC, the Brazilian Association of Investigative Journalism (ABRAJI) called on the commission to consider the laws and judicial practices that violate freedom of expression in Brazil.

ABRAJI was joined in the effort by the freedom of expression international organization Article 19 and the Center for Justice and International Law (Cejil). They criticized particularly the abusive use of judicial lawsuits against the media, journalists and human rights defenders.

"Article 19, Cejil and ABRAJI are deeply preoccupied with the use of judicial measures that cause illegitimate restrictions to freedom of expression and inhibit the free flow of information and open debate on public interest issues. We call on the Inter-American Commission on Human Rights to conduct a review of all issues presented during the hearing to assess their effects on human rights defenders and social communicators," said Article 19's Executive Director, Agnès Callamard.

Some of the problems include a weak legal framework; the excessive and coordinated use of civil defamation lawsuits; the high amount of lawsuits presented by public agents; the disproportional value of the indemnifications; the use of provisional injunctions preventing the publication of information prior to any publication, which may amount to prior censorship; and other indirect restrictions to freedom of expression.

There were reported specific cases and statistics were presented on the abusive use of lawsuits against journalists and human rights defenders in Brazil.

From 2005 to 2007, 53 cases of civil defamation lawsuits against the media reached the Superior Court of Justice. In 37.6% of these cases, the plaintiffs were public officials.

At the São Paulo State Court of Justice, 93 cases were presented between October and December 2007, and 47.4% of the lawsuits were filed by state agents.

The organizations also highlighted a strategy used by members of some groups in Brazil which consists of filing a wave of coordinated lawsuits in various parts of the country against one single journalist or media outlet, with the clear intention of silencing and intimidating these professionals with the excessive volume of cases. The Universal Church of the Kingdom of God has just done that against Brazil's largest newspaper, the Folha de S. Paulo.

Representatives of the Brazilian State and the National Federation of Journalists (Fenaj) participated in the hearing. They supported the current system of reparation for moral damages and the criminal treatment regarding defamatory statements.

According to them, the abuses mentioned in the document are exceptions, and not the rule. They also stated that the preoccupations expressed by Article 19, Cejil and ABRAJI do not result in intimidation or self-censorship.

The Inter-American Commission expressed preoccupation with the possibility of prior censorship through provisional injunctions, and asked the Brazilian State for more information regarding their use, as well as procedures and deadlines for review.

Commissioner Florentin Melendez mentioned that States should find a "rational balance" when there is a conflict between fundamental rights, and requested that the Brazilian State provide information on the measures taken to guarantee that this balance is reached within specific cases.

In their report, ABRAJI, Article 19 and Cejil recommended to the Brazilian State:

– A review of the legislation on freedom of expression with the purpose of aligning it to international patterns in the area;

– The adoption of clear, objective patterns for measuring the damages and deciding on the value of indemnifications; and

– The adoption of reparation measures which do not result in illegitimate restrictions on freedom of expression.

– Regarding the waves of lawsuits against journalists, the three organizations fully recognize the right of citizens to judicial reparations in cases where they have been defamed. However, the wave of coordinated lawsuits against one individual is not acceptable. The organizations recommend that the Brazilian State considers the adoption of such measures as allowing a unique centralized judgment when several lawsuits are filed by members of a given group.

The organizations also recommended to the Inter-American Commission that it conducts a review of all issues presented during the hearing to assess whether the current practices are in accordance with international human rights principles, and evaluate the effects that the mentioned practices may exert on human rights defenders and social communicators.

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