Press advocacy groups in Brazil have exhaled a sigh of relief after a Supreme Court ruling that found news organizations cannot be held liable for defamatory statements made by interview guests during live interviews.
The court, in an unanimous decision delivered Thursday, March 20, said news organizations can’t be required to pay damages for moral harm related to live broadcasts in which their sources slander or defame a third party. However, the outlet must ensure a right of reply to any implicated parties under the same conditions, space and prominence.
The court also reinforced a 2023 ruling that found a news organization can only be held civilly liable if bad faith is proven. The court said this is characterized by prior knowledge of false statements by interviewees or by evident negligence in verifying information, without providing an opportunity for response to the offended parties or at least attempting to present the opposing view.
The decision also says media outlets may be held liable if false accusations are not digitally removed voluntarily or upon notification from the victims.
"This decision protects press freedom while also recognizing the need for responsibility in handling information," Artur Romeu, director of the Latin America office of Reporters Without Borders (RSF), told LatAm Journalism Review (LJR). "By establishing that media outlets can be held liable if there is intent or gross negligence in disseminating false information, the Supreme Court seeks to prevent the press from being irresponsibly used to slander or harm someone."
Media outlets will be protected from lawsuits in most cases, said Justice Luís Roberto Barroso, president of the supreme court, according to government news agency Agência Brasil.
"The outlet is only held liable for an interview given by a third party in cases of intent and gross negligence,” Barroso said. “As a general rule, the outlet is not held liable for an interview given by a third party."
When the initial decision was handed down on November 2023, it sparked concern among news organizations, journalist associations, and press freedom experts, who feared the ruling could intensify judicial harassment against journalists. Brazil has seen a wave of lawsuits against journalists for years, and the trend has been escalating.
Among the reasons for concern raised at the time were the ambiguity of the ruling's terms, a national context of courts being frequently used against press professionals, and potential misuse of the decision to target the press, particularly in the case of live interviews and smaller outlets that lack legal departments.
According to Letícia Kleim, coordinator at the Brazilian Association of Investigative Journalism (Abraji), the ambiguity of the 2023 ruling was being cited in lower court cases that did not even involve interviews or allegations of criminal activity. The STF's new understanding represents progress, she said.
"We were dealing with a ruling that was being widely applied in lower courts, including to hold outlets liable in cases that did not involve interviews or false imputations of crimes," Kleim told LJR. "Our concern was precisely with the use of this ruling by lower courts and the risk of worsening the legal uncertainty that journalism already faces in Brazil."
Romeu, Latin America director for RSF,said the court’s decision, by specifying the responsibility of media outlets in cases of interviews where someone is falsely accused of a crime, marks progress in balancing press freedom and the protection of individual rights.
This "strengthens journalistic ethics and public trust without compromising its essential function of investigating and informing," Romeu added.
André Matheus, an attorney specializing in freedom of expression, said that with the decision, legal security for journalists has "improved significantly" because it ends "case-by-case and subjective analysis" in interpreting the law and introduces "objective rules." However, Matheus pointed out that the mere possibility of lawsuits against outlets for publishing third-party statements still poses a risk of abusive and intimidating litigation.
"The journalist and the platform, the newspaper, have no control over what another person says,” Matheus told LJR. “They cannot always know whether something is a lie or not."Romeu said concerns that media outlets, "fearing liability for problematic statements, may adopt an overly cautious stance, which could lead to self-censorship." In the long run, he said, jurisprudence could evolve to find a more refined balance between press freedom and protection against false and defamatory information.
Kleim said Abraji is concerned with how the right of reply will be understood and applied by the courts. She also expressed concerns about how the requirement to remove content after defamation is proven will be implemented in practice.
"The court has made progress in understanding the risks that its decision posed to press freedom and has moved forward in trying to restrict and minimize those risks as much as possible," Kleim said. "On the other hand, some definitions remain somewhat open-ended, raising these concerns."
