After criticism from Brazilian and international entities, Supreme Court revokes censorship it imposed on news sites

Updated (April 18, 2019): On April 18, Brazilian Supreme Court (STF) Minister Alexandre de Moraes revoked the censorship he had imposed on the sites of Crusoé magazine and O Antagonista, Folha de S. Paulo reported.

According to the newspaper, the decision was made after criticism from organizations and public figures in Brazil and other countries, among them STF ministers like Marco Aurélio Mello and Celso de Mello.

In the decision published today and shared by the newspaper O Estado de S. Paulo, Moraes states that it has been proven that the document on which the report from Crusoé is based and that mentions the president of the STF, Dias Toffoli, really exists and was sent to the Attorney General's Office.

Folha also reported that Toffoli revoked, also on April 18, the September 2018 decision that barred it from interviewing former president Luiz Inácio Lula da Silva, who has been in jail for a year. Lula, therefore, could give interviews to Folha and other media outlets.

Original (April 18, 2019): In a decision criticized by Brazilian and international organizations that defend freedom of the press and of expression, the Brazilian Federal Supreme Court (STF, for its initials in Portuguese) ordered the removal of a report it claims is “fake news.”

The Brazilian Association of Investigative Journalism (Abraji), the Brazilian Bar Association (OAB), the Committee to Protect Journalists (CPJ) and the Special Rapporteur on Freedom of Expression of the Inter-American Commission on Human Rights (IACHR), Edison Lanza, among others, expressed their opposition to the Supreme Court’s decision.

On April 15, the newsroom of the magazine Crusoé was notified of a decision by STF Minister Alexandre de Moraes, demanding that the report “O amigo do amigo de meu pai” (The friend of my father’s friend) be withdrawn "immediately" from the magazine's website and from the website O Antagonista, under penalty of a daily fine of R $100,000 (about US $25,000) if the decision was not complied with.

Brazilian Supreme Court presidente, Dias Toffoli (Carlos Moura/STF)

The report refers to the STF minister and court president Dias Toffoli, which it says was mentioned in testimony given by contractor Marcelo Odebrecht in exchange for a reduced sentence in Operation Lava Jato, which investigates a corruption scheme in the country.

The report is based on an operation document containing Odebrecht's responses to Federal Police questioning. One of the questions concerns the code-named "friend of my father's friend," which appears in the contractor's e-mail exchanges with other company executives in 2007, according to the document. According to Odebrecht, the term refers to Dias Toffoli, then solicitor-general of the Union.

Moraes states in his decision that he ordered the removal of the report from the site at the request of Toffoli. The president of the STF asked the minister for "the proper investigation of the lies recently divulged by ignoble people and site that want to hurt Brazilian institutions," according to Moraes.

In his decision, Moraes classifies the report as "a typical example of fake news" and states that "there is clear abuse in the content of the published article." The minister based his decision on a note from the Attorney General's Office (PGR) that says it did not receive the document with Odebrecht's replies, while the report says that the document had been sent to the PGR.

"The clarification from the Office of the Attorney General of the Republic makes false the statements divulged in the article," Moraes wrote in his decision. The magazine, for its part, states that it never said that the document had reached the PGR and claims to have tried to hear Dias Toffoli about Marcelo Odebrecht's statement, but that the president of the STF "did not answer the questions sent to him before publication of the report which is now censored."

Crusoe and O Antagonista removed the report from their sites, but it was reproduced in its entirety on site of The Intercept Brazil. "The strategy of adjectivizing any news that displeases the powerful with the term 'fake news' has been spreading in a pernicious way, wounding our weakened Brazilian democracy more and more. This thesis can not prevail, at the risk of seeing the critics being silenced at the judges’ humor," The Intercept wrote.

In a statement, Abraji said, “It is unsettling to blame journalists of spreading ‘fake news,’ based on official sources and documents, regardless of whether the content is correct or not.” “More unsettling still is to use this vague concept, which some authorities use to disqualify everything that displeases them, to determine suppression of journalistic content on the internet. The precedent created by this action is a serious threat to freedom of expression, a constitutional principle that the STF claims to defend.”

Brazilian Supreme Court minister Alexandre de Moraes (Carlos Moura/STF)

The organization added, “It is also a cause for alarm that the STF adopts this restriction of freedom of the press particularly in a case that refers to the president of the court.” Abraji appealed to the STF “to reconsider the decision of Minister Alexandre de Moraes and reinstate the right to publish information the affected news outlets consider to be of public interest.”

The OAB, also in a note, expressed "concern" with the Moraes decision and affirmed its position "in favor of full defense of the constitutional principles that are present in the 1988 Constitutional Charter, among them freedom of expression and of the press, inalienable and inviolable principles in our rule of law.”

CPJ coordinator for Central and South America, Natalie Southwick, said in a statement that the STF’s decision against Crusoé is “extremely troubling.” "Rather than scrubbing critical articles from the internet and harassing reporters, Brazilian judicial officials should be committed to upholding constitutional values such as freedom of the press."

Edison Lanza, special rapporteur of the IACHR for Freedom of Expression, said in an O Globo newspaper interview that Moraes' decision violates the Inter-American Convention on Human Rights, ratified by Brazil. "The Convention is our charter of human rights in the hemisphere and it obliges all public bodies in Brazil to respect and guarantee the rights provided in the text. Article 13 establishes the right to freedom of expression and strongly protects the right of society to receive information on matters of public interest," Lanza said.

"I'm worried that the phenomenon of so-called fake news, which is a problem, is being used as a censorship tool. A media outlet publishing something about a public official is not fake news. It can lead to a court case, but not the application of censorship. Blocking websites and social networks is a serious form of censorship," the rapporteur added, who also said that he intends to propose to the IACHR that it should express its views on the matter.

Controversy regarding inquiry into 'fake news'

Minister Alexandre de Moraes's decision on Crusoé magazine's report is part of STF's 4781 inquiry, which was launched by Toffoli on March 14 to "investigate facts and infractions concerning fraudulent news (fake news) and internet threats that target the Court, its ministers and relatives," according to the STF News website.

The investigation has been criticized since its inception, including by the PGR, which questioned the legality of the investigation, and even from within the STF, such as Minister Marco Aurélio Mello. At the time, he told Jornal Nacional that the "Supreme Court should keep a necessary distance from investigations involving the investigation of alleged crime against the court itself."

Brazil's Attorney General, Raquel Dodge (Carlos Moura/STF)

On April 15, the Rede Sustentabilidade party filed a petition with the STF, directed to Minister Edson Fachin, to suspend censorship of the sites of Crusoé magazine and O Antagonista, G1 reported. Fachin is the rapporteur of a party action seeking the suspension of the 4781 inquiry. The following day, Fachin gave Moraes five days to present information on the investigation and the same deadline for the PGR to make a statement on the censorship of both sites, reported Estado de S. Paulo.

Also on April 16, the Attorney General, Raquel Dodge, sent a statement to Minister Moraes archiving inquiry 4781, claiming as "the basis [of her motion] the respect for legal due process and for the accusatory criminal system established in the 1988 Constitution, according to which the public prosecution is the exclusive assignee of criminal action.”

Moraes, in turn, replied that Dodge's statement "finds no legal basis," is based on "absolutely mistaken premises" and intends, "unconstitutionally and unlawfully, to interpret the court rules and to annul judicial decisions of the Federal Supreme Court," as reported by Folha de S. Paulo. The minister also extended the investigation for another 90 days.