When a media outlet publishes an interview that contains false information, does the legal responsibility for that information fall on the person interviewed or on the outlet?
In Nov. 29 ruling, Brazil’s Supreme Federal Court (STF, for its acronym in Portuguese) decided that a media outlet can be held civilly liable – that is, it must pay compensation – if it publishes an interview in which the interviewee “falsely attributes the commission of a crime to another person.”
The decision provoked concern among media representatives, journalists' associations and press freedom experts, who fear that the sentence, which establishes a valid thesis for other cases, could intensify judicial harassment against journalists in the country and inhibit freedom of expression. Entities that defend journalists said they will go to the Organization of American States (OAS) against the verdict.
LatAm Journalism Review (LJR) spoke to several experts on press freedom and constitutional law in Brazil to understand the potential consequences of the court’s decision.
Among the causes for concern, analysts refer to the ambiguity of the decision, a context of recurrent use of the courts against press professionals and possible uses of the text to persecute the press, especially smaller outlets that do not have legal departments.
On the other hand, some experts emphasize that the decision appears in a legislative void on the subject, and that the establishment of the framework is not negative.
Below are some of the main points involving the sentence and its potential consequences.
It all concerns a case before the Supreme Court related to the newspaper Diário de Pernambuco. In the text published in May 1995, former police chief Wandencok Wanderley said that Ricardo Zarattini, former federal congressman in São Paulo, participated in a bombing at Guararapes Airport in Recife in 1966.
Wanderley was notoriously anti-communist and accused of being a torturer. After being a police chief, he became a politician and died in 2002. Zarattiini, a politician for the Workers’ Party, died in 2017.
The target of the attack was Marshal Costa e Silva, then-Minister of the Army and candidate for presidential succession. Two people died and 14 were injured. The military dictatorship even indicted Zarattini two years after the attack, but the investigation was considered flawed. Since the 1970s, there has been overwhelming information, including investigations by the Armed Forces themselves, that Zarattini had no involvement in the case. In the 1987 book “Combate nas Trevas” (Dark Combat), historian Jacob Gorender also rules out Zarattini's participation.
In the interview in Diário de Pernambuco, Wanderley stated that “the person responsible for the attack was the activist Zarattini, brother of actor Carlos Zara. The process clearly pointed to his participation in the terrorist act.”
Zarattini sued the newspaper, and the case has only now finished being considered by the Supreme Court, which said that, at the time of publication, there was already “concrete evidence” for Diário de Pernambuco to know that the information was false, and that the newspaper did not pay attention to that.
In its decision, the Supreme Court states that, “as a general rule, if a newspaper publishes an interview in which a person, without having proof, says that another person committed a crime, any compensation due to the offended party must be paid by the person who made the false accusation, not by the media outlet.”
The decision says that “in very exceptional situations, however, the journalistic company may be ordered to pay compensation, provided that bad faith (actual malice) or serious negligence is proven on the part of the newspaper in publishing the interview.”
According to the Supreme Court, for this to occur, two conditions are necessary. The party accused of a crime must prove that the newspaper “(1) already knew of the strong evidence that the accusation was false and (2) did not take care to disclose to its readers that the interviewee's accusation was, at the very least, questionable.”
The decision had nine votes in favor and two against. It constitutes a thesis of general repercussion, that is, one that must be observed by all courts in the country.
One of the criticisms that experts have made about the text, as expressed in an article published by the website Consultor Jurídica, is that it is ambiguous and generic.
Among the jurists and freedom of expression activists consulted by LJR, a majority endorse this statement.
Journalist Artur Romeu, director of the Latin America office of Reporters Without Borders (RSF, for its acronym in French), says that, based on the decision, it is not clear when media outlets can or cannot be held responsible.
“The criteria that would define and guide this possibility of holding press outlets accountable, based on the statements of their interviewees, are very ambiguous or vague. The risk lives there,” Romeu told LJR.
In the decision, the journalist recalled, the Supreme Court states that an outlet can be held responsible when there is “concrete evidence” that the interviewee's speech is false, or if it becomes clear that the press outlet failed to watch out for the veracity of what is being said by a third party.
“But the duty of care to verify, or what constitutes concrete evidence, is not sufficiently defined. Ambiguity or vagueness generates risk,” he added.
Soraya Regina Gasparetto, professor of constitutional law at the Universidade Estadual Paulista (Unesp) in Araraquara, agrees with this assessment.
“I don’t know what concrete evidence is. Could it be a conviction? A piece of crime news? It’s not clear,” Gasparetto told LJR. “How will [a journalist] need to investigate, just like the police investigate? Or is simply a news article saying otherwise enough?”
Gasparetto also draws attention to another ambiguous aspect of the sentence. According to the ruling, only in cases of malice should there be punishment. For the scholar, it is not clear, however, what constitutes or does not constitute malice in this case.
“The decision is not clear. It does not have the requirements that a law could have, establishing, for example, what is typical and atypical conduct, penalty or increase in penalty. It does not have the requirements of legislation.”
André Andrade, who is a specialist in freedom of expression issues, as well as judge of the Court of Justice of Rio de Janeiro (TJRJ) and professor of Law at Unesa, told LJR that the term “concrete evidence of false imputation” is a questionable expression. Who says what is ‘concrete evidence of false imputation’? This will be controversial in the future.”
Carlo José Napolitano, also a specialist in freedom of expression issues and law professor at Universidade Estadual Paulista (Unesp), draws attention to the term “publication.” In this regard, he wonders whether the decision is also valid for live interviews in media like radio or television – that is, whether an outlet will be held responsible for an opinion expressed live.
“The problem is that you interpret ‘publication’ as ‘broadcasting.’ The Supreme Court's decision is not clear. And therein lies the problem, because this idea of accountability could also be applied to other outlets, such as television and radio. And then the possibility of checking information said by the interviewee in a live interview cannot be applied to most outlets.”
In this regard, Andrade disagrees with his colleague, and understands that the decision is not that far-reaching.
“The thesis doesn’t address that. This is a reasonable speculation to make, but one cannot legitimately invoke the thesis to try to apply it to a live interview. The case judged was the publication of an interview published in a printed newspaper, and it would be unreasonable to demand this of a live interview. A live interview would be a new situation that, in my opinion, is in a [legal] void,” Andrade said.
Since 2009, when another decision by the Supreme Court deemed the 1967 Press Law, enacted during the dictatorship, unconstitutional, Brazil has not had specific legislation on the subject that specifies which behaviors are or are not acceptable.
The new decision fits in this legislative void.
“The press freedom law might not have been good, it might even be terrible, but there were several articles that established what was legal and what was illegal, and what could be punished and what could not be punished,” Gasparetto said. “Since then, we have been in a legislative vacuum, because legislators have not yet fulfilled their obligation to establish this law.”
Due to this lack of laws on the subject, Andrade considers the decision to be a welcome development.
“Until now, we had a legal void regarding the civil liability of the press organizations, of journalistic companies. And now we have some clues, we have some idea of what the position is, at least temporarily, of the Supreme Court in relation to the issue,” Andrade said.
“What was observed in jurisprudence was that judges judged cases involving press organizations and journalistic companies without any criteria. We now have at least one criterion, and I see this point as something positive,” he added.
Professor Napolitano said that current Brazilian legislation is already sufficient to deal with cases like the one that was considered.
“In legislation, we do have elements to eventually punish bad journalism that did not check the information. There is the constitutional text, civil legislation, procedural legislation and the law on the right to reply, which is from 2015”, he said.
Napolitano said that making the judgment in this case a thesis that is valid for other cases is something that can have practical repercussions.
“I don't think it's a problem to convict in this specific case, because apparently there was a gross error and holding the newspaper responsible would perhaps be acceptable,” Napolitano said. “But using this case to make a thesis with general repercussions is another story. It is a problem to use a concrete case, a specific case, for all cases that may exist.”
The Supreme Court announced that the parameters of the decision “will be applied to at least 119 similar cases that were awaiting the Supreme Court's resolution,” without, however, disclosing which cases these are.
Napolitano noted that this new jurisprudence could have a chilling effect on many journalists in the country, especially those from smaller and less structured outlets.
“We listen to radio stations in the interior of Brazil. There are thousands. In most of them, the radio owner is also an announcer or editor or driver. These are family jobs. There is no chance of checking,” Napolitano said. “So the inhibition of debate interview information is a terrible practical repercussion based on a specific case.”
Romeu, from RSF, said that the decision takes place in a context of increasing disinformation, but also in a context of using bad faith litigation as a resource for those who want to silence the press.
“The problem is that the decision, when trying to contribute to an idea of journalism exercised responsibly in the midst of a context of disinformation, ends up stepping on the wrong foot and opening the door for us to see an increase in the number of abusive legal processes or situations of judicial harassment based on a logic of bad faith,” he said.
As LJR has covered for years, cases of judicial harassment are increasingly proliferating in Brazil, although there is no count that identifies the number of these cases. Traditionally, when these cases reach the Supreme Court, it usually rules in favor of the journalists.
Until then, however, they cause enormous headaches for journalists, especially the most vulnerable. The fear of Romeu and many others is that the new jurisprudence, in disagreement with most of the Supreme Court's history, will reinforce this persecution.
“In recent years, we have seen journalists and media outlets being abusively sued by politicians and businesspeople, in an attempt to silence legitimate journalism. This is not to say that journalists cannot be the target of lawsuits. They can and should be held accountable. But what we see is this being used repeatedly, an attempt to abuse the courts to attack those who do serious and careful journalism,” Romeu said.
“In a context where this happens systemically, the decision ends up being an additional tool for press outlets, especially small and medium-sized ones, to suffer this type of process.”