After protests, judge reverses ruling to access Brazilian blogger’s communications records

*This post was updated to clarify that the decision was to access communications records, not intercept communications. The translation of Guimarães' Tweet was also edited to better reflect the pronoun used.

After criticism from journalist associations and entities, Judge Sergio Moro, who is responsible for cases dealing with the Lava Jato corruption scandal, backed down from the decision to access communications of Brazilian blogger Eduardo Guimarães. In an order published on March 23, Moro annulled the material obtained with the seizure of Guimarães’ telephones and computers, which would allow the identification of his sources.

However, the blogger is still being investigated for allegedly having passed an advisor information about an investigation against former President Luiz Inácio Lula da Silva. In March of last year, Guimarães announced, in his blog, that Lula would be the object of condução coercitiva, a practice in Brazil when someone is taken by force for questioning in front of the police. Called Blog da Cidadania (The Citizenship Blog), the site is considered aligned to the left-wing political parties, such as the Workers’ Party, and critical of Operation Lava Jato.

According to a note from the Federal Public Prosecutor’s Office, the blogger “directly informed the investigated persons of the existence of legal measures that were under confidentiality and pending enforcement.” The Federal Court of Paraná states that, with this, it could have “put the investigations at risk.”

On March 21, Moro ordered the condução coercitiva of Guimarães and the access of the blogger’s communications.The Federal Police took Guimarães to the superintendency of the entity in São Paulo where he gave testimony. The judge also ordered the seizure of computers, cell phones and documents from the blogger.

Moro’s decision was harshly criticized by national and international organizations like Reporters Without Borders (RSF for its acronym in French), Article 19, the Committee for the Protection of Journalists (CPJ), the Brazilian Association of Investigative Journalism (Abraji for its acronym in Portuguese), the Association of Professional Journalists of São Paulo (SJSP) and the National Federation of Journalists (Fenaj).

Article 19 said in a press release that the action was a “serious attack on the right to freedom of the press,” sending “an immediate signal to the other communicators who cover the Lava Jato operation.”

“This, however, is not the first time that the Brazilian Judiciary seeks to violate the confidentiality of a source,” the organization said, recalling cases such as that of journalist Murilo Ramos, of magazine Época. “The right to confidentiality of source is a fundamental condition for the practice of investigative journalism and must be protected by all public institutions in the country, especially by the Judiciary,” Article 19 reiterated.

Carlos Lauría, senior program coordinator of CPJ for the Americas, said the police action was an “alarming violation.” In Brazil, the Federal Constitution provides for the right of journalists to preserve the identity of their sources.

In addition to international organizations, the SJSP and Fenaj also protested against the measure. In an official statement, the associations said that condução coercitiva was an “arbitrariness,” “inspired by the era of military dictatorship in the country.”

The organizations also highlighted that information leaks in the Lava Jato operation have been common. “The Federal Police attack, also, the freedom of the press and of expression of the blogger – the same Federal Police that has leaked information selectively according to their own interests,” SJSP and Fenaj said.

“Not a journalist”

After the criticism, Moro officially made a statement on the case, saying that the blogger was not a journalist and that the site served as “a vehicle for political party propaganda.” Moro also said that, in the site, there is a banner with the image of the blogger as a candidate for councilman for the Communist Party of Brazil. Guimarães ran for office last year in São Paulo, but was not elected.

“Along with the available records and the Superior Electoral Court, the investigated self-identifies as a trader and not a journalist. The proceedings were authorized based on a request from the police and the Federal Prosecutor’s Office that Carlos Eduardo Cairo Guimarães is not a journalist [...]. It is not necessary to have a diploma to be a journalist, but it is not enough to have a blog to be a journalist,” the judge said in an official statement.

Moro’s justification, denying the journalistic nature of Guimarães’ work, generated even more criticism. Abraji, through an official statement, expressed concern about the case.

“It is not for the Federal Justice to draw lines to define who is and is not a journalist with the objective of removing constitutional prerogatives. There is no doubt that one of the activities of Eduardo Guimarães is the maintenance of his blog, through which he has performed political analysis since 2010, a journalistic activity,” the association said.

Article 19 and RSF followed the same line. “The investigation was conducted in an unfortunate manner. There was access of the blogger’s telephone, seizure of work material, condução coercitiva without him being summoned to testify beforehand, and an extremely disturbing statement from the Federal Court of Paraná issuing a value judgment on Guimarães’ journalistic activity,” said RSP communications coordinator in Brazil, Artur Romeu, to the Knight Center.

According to Guimarães’ defense note, published in his blog, the action was a kind of censorship.

“To condition the qualification of ‘journalistic information’ to the content of publications has no other name: it is censorship,” he said. The defense said that Guimarães also works as a trader, but that the investigation addresses an act practiced in the exercise of journalistic activity.

Judge retreats

On March 23, Moro stepped back from his decision to break confidentiality of Guimarães’ sources, but kept the investigation against the blogger for “alleged hindrance” of the investigation involving former President Lula. In the order, Moro cites Abraji’s note and “public demonstrations by some respected journalists and associations” as a reason to partially revise his decision.

“In this context and considering the value of the free press in a democracy and not being the intention of this judge or of the other authorities involved in the investigation to jeopardize this freedom and the secrecy of source, it is the case to review the previous position and better delimit the object of the process,” he said in the document.

For RSF, the new decision was a victory, but the blogger’s investigation still causes concern. “We evaluate that it is not only normal, but also part of the journalistic ethics to check the veracity of information before publishing it. In fact, Eduardo Guimarães himself had already stated in the text that he wrote at the time that he had contacted Institute Lula to assess the veracity of the information he had received,” Romeu said.

In his blog, Guimarães points out that he consulted Lula Institute to check data. “I had to know if it was not some set up [...] I went to the press offices of Lula Institute to find out if the former president knew those names. I did not tell him anything about condução coercitiva,” he wrote. He further states that investigators would not know this if he had not written on his own that he had consulted the Lula Institute.

Source revealed?

In this order, Moro said the purpose of the investigation was not to discover the blogger’s source, who had already been identified, but to investigate whether Guimarães had warned the former president of the police action.

“[Guimarães] also confirmed that he not only disclosed the information on his blog, but also communicated it to press agent of the investigated person. [...] In a conduct also distant from professional journalism, he revealed, when asked by the police authority and without any kind of coercion, who his source was [...]. A true journalist would never reveal his source,” the judge wrote.

Guimarães denies disclosing the informant’s name to the police and says he was pressured. In his blog, he states that his wife, his daughter and he were awoken by police, who searched the house and took him to testify without a lawyer. According to Guimarães, the experience was “a trauma.”

“All I can say is that there was no source to preserve because the authorities told me more about them than I knew. Before I started testifying, I was informed that my interrogators knew who the source was. He [Moro] says I was not pressured, I say the opposite,” he wrote.

Guimarães had already been summoned to give clarification in another investigation, about alleged threats that he would have made to Moro in social networks, according to Folha de S. Paulo. "The delusions of a psychopath invested with a discretionary power like Sergio Moro will cost your job, life," Guimarães wrote in a Twitter post in 2015.

The blogger said that he can not be tried by Moro, since he is being sued by the judge in another action. "Judge Sergio Moro has become my enemy. He is no longer a judge, he is part of a litigation. I can not be judged by an enemy. That is an aberration," Guimarães wrote.

Note from the editor: This story was originally published by the Knight Center’s blog Journalism in the Americas, the predecessor of LatAm Journalism Review.