Case of Brazilian journalist Rubens Valente reveals new censorship and puts press freedom at risk

*By Vasconcelo Quadros, originally published on Agência Pública’s website

A revoked sentence by Brazil’s Superior Court of Justice (STJ, by its acronym in Portuguese) and confirmed by the Federal Supreme Court (STF), in February 2022, which is already in the execution phase, forced journalist Rubens Valente to pay Supreme Court Justice Gilmar Mendes, about BRL 310,000 [approximately US $60,000].

The compensation for “moral damages” is related to the publication of Valente’s book Operação Banqueiro [“Operation Banker”], a detailed investigative journalism piece on banker Daniel Dantas, arrested in 2008 by Brazil’s Federal Police during Operation Satiagraha [a Federal Police operation that began in 2004 to investigate diversion of public money and money laundering].

As an unprecedented punishment, the two courts also imposed on the journalist the obligation to include in a future reprint of the book, as a right of reply, the ruling, accompanied by the full and faithful transcript of the initial petition filed by Gilmar Mendes, in the order of 200 pages that, once grafted in by judicial force, would disfigure the work.

At the end of February, Valente paid the judge BRL 143,000 [US$ 27,000] and, if the execution of the sentence is not changed by a decision of the trial judge, Valente will have to pay another BRL 175,000 [US$ 34,000] (updated to current values) as joint-debtor, if the publishing house Geração Editorial, which published his book, does not pay its share.

The total to be paid to Mendes represents everything the journalist managed to gather working as a reporter for the main news outlets in the country for more than 30 years. By way of comparison, it is an amount four times greater than the amount that former prosecutor Deltan Dallagnol will have to pay as compensation for moral damages to former President Luiz Inácio Lula da Silva for his famous Powerpoint presentation [In 2016, Dallagnol showed a Powerpoint slide – which accidentally became a meme – to support the accusation that Lula was the “maximum commander” of a corruption scheme. Earlier this year, Lula won a lawsuit for “moral damages” against Dallagnol.]

In the Rubens Valente case, there is a striking conflict of interpretation between the content of the book and the Supreme Court Justice’s allegations: Valente's book is a journalistic work, faithful to  Brazil's Federal Police investigations and related facts that the journalist researched to profile the main characters involved in the story. Among them is Gilmar Mendes, on account of two of his rulings that allowed banker Daniel Dantas to walk free.

Punishment prevents reprint of the book “Operação Banqueiro”

At first, the inital judge Valter André de Lima Bueno Araújo, of the 15th Civil Court of Brasília, analyzed the merits of the case and found nothing to support the Supreme Court Justice’s demand. In his decision, Bueno Araújo said that there was no “false information or defamatory intent” in the book and ruled out an alleged violation of personality rights [in Brazilian law, personality rights are the ones related to the individual and all the aspects that characterize the individual’s identity] guaranteed by the Brazilian Constitution to protect the image and honor of any individual. Citing an article published by another Supreme Court minister, Luís Roberto Barroso, during his time as a law professor, on the conflict between the personality rights claimed by Mendes and press freedom, the judge recalled that the minister is a public figure and considered that investigation and reporting on his actions as then-president of the Supreme Court clearly served the public interest.

In May 2015, the judge acquitted Valente and Geração Editorial, and ordered Mendes to pay the legal costs of the case.

Gilmar Mendes sentado diante de um microfone

Supreme Court Justice Gilmar Mendes (Carlos Moura/SCO/STF)

Mendes then appealed to the Federal District and Territories Court of Justice (TJDFT), which overturned the sentence and condemned the journalist to pay an initial compensation of R$30,000 [US$ 5,800]. But the biggest blow was yet to come from the higher courts: the Superior Court of Justice (STJ) - the highest instance of the Brazilian Judiciary in the common justice sphere - not only ruled in favor of Mendes and increased the compensation, but also ordered the defendants to include Mendes' initial petition and the sentence in any future reprint of the “Operação Banqueiro” book. In August 2021, the Supreme Court unanimously voted to validate Mendes' claim. Only one of the five Supreme Court Justices handling the case, Luís Roberto Barroso – who strongly criticized Mendes during internal deliberations – did not vote. The other Supreme Court Justices (Dias Toffoli, Marco Aurélio Mello, now retired, and Rosa Weber)  voted with Alexandre de Moraes, who was presiding over the case, to confirm this unprecedented decision.

This final sentence sets an alarming precedent against press freedom in Brazil. A survey by the Brazilian Association of Investigative Journalism (Abraji), to which Agência Pública had access, shows that in the wake of the Supreme Court decision, the same arguments employed in the appeal against Valente had been used to convict defendants in four other cases judged by the STJ by December 2021. During the same period, the case also served as a precedent for conviction as well as determining the amounts of compensation for "moral damages" in ten other cases in state trial and appeal courts.

Concerned about the harm caused by the Supreme Court's decision against Valente and the threat it poses to press freedom in Brazil, Abraji filed a petition with the Inter-American Commission on Human Rights (IACHR), an organ of the Organization of American States (OAS), asking the Commission to assess the case.

When contacted by Pública, Abraji sent the following statement on the case: “Concerns about how this issue was being dealt with by Brazil's Judiciary led Abraji, together with Media Defense and the Robert Kennedy Foundation, to seek an international perspective on the matter. The case was thus referred to the IACHR. Abraji considers that the STF decision against Rubens Valente sets a dangerous precedent for the legal and constitutional right to freedom of expression in Brazil, because it imposes a very serious liability for the exercise of press freedom, especially when there was no abuse on the part of the journalist. Not to mention the self-censorship effects it will have not only on Valente, but also on other journalists who may wish to report on facts of public interest that go against members of the judiciary.”

When Judge Gilmar Mendes was contacted by Agência Pública, he said would not discuss the matter and suggested looking for his lawyer. Rodrigo de Bittencourt Mudrovitsch, Mendes' lawyer, was nominated to be a judge of the Inter-American Court of Human Rights (IA Court) by President Jair Bolsonaro, [a position to which he was elected on Nov. 12, 2021 by the General Assembly of the OAS]. The Inter-American Court could judge Abraji's request if the Inter-American Commission on Human Rights refers the case. The lawyer did not return the request for an interview sent through his press office.

Journalists and organizations interviewed by Agência Pública emphasize that this judicial decision has an immediate intimidating effect on journalistic investigation and biographical works. Journalist Octávio Costa, the newly-elected president of the Brazilian Press Association (ABI), sees in the STF decision a new kind of censorship in the form of lawsuits filed by members of the same Court that will ultimately judge the cases - what constitutes a clear instance of conflict of interest and abuse of power.

“It is unbelievable that members of the STJ and STF are allowed to propose and judge lawsuits involving colleagues from the same court. There is no doubt that this affects press freedom; judicial harassment intimidates journalists. No one is against the right of reply, but it cannot be abusive or involve a conflict of interest,” Octávio Costa said. Costa himself is a defendant in another lawsuit for moral damages filed by Gilmar Mendes seeking R$ 150,000 [US$ 29,000] in compensation for a  story on Mendes’ family published in 2018 in a magazine run by Costa at the time.

Judicial harassment against journalists has become a major challenge to independent journalism and to organizations that represent journalists. After the Brazilian Press Law was abolished in 2009 [the law had been created during the military dictatorship and allowed for prior censorship and the seizure of publications] lawsuits for moral damages began to be filed directly against journalists. The publishing companies enter as joint defendants. The Rubens Valente case raises two other basic issues: the lack of parameters to assess the value of the alleged moral damage and the content of what should be considered offensive.

Gilmar Mendes has filed 11 lawsuits against journalists

Between 2010 and 2018, according to Abraji, Supreme Justice Gilmar Mendes filed 11 lawsuits in which, in addition to Valente and Octávio Costa, seven other journalists appeared as defendants: Luis Nassif, Patricia Faermann, Tabata Viapiana, Cynara Menezes, Claudio Dantas Sequeira, Monica Iozzi, and Paulo Henrique Amorim, who died in June 2019 and was the target of six lawsuits for criticizing Mendes. Most lawsuits are still in progress. In some of them, such as that of Iozzi, who paid R$30,000 [US$ 5,850] to Mendes, the amount of compensation was reduced. Regarding the Rubens Valente case, the defense demanded payment in full and with no installments.

Valente's lawyer, Cesar Klouri, cited in his appeal two prior decisions in different cases ruled by the STJ to measure the monetary value of the alleged damage to a person’s image. The amounts had ranged from R$15,000 to R$20,000 [US$ 2,920 to US$ 3,890], well below the amount demanded by Gilmar Mendes and determined by the higher courts. In his appeal, Mendes states that the amount of compensation must take into account the seriousness of the offense, the socio-economic conditions of the offender and “must be high enough to discourage further attacks on the honor of others.” For the journalist's lawyer, the amount established in the ruling would be an irrecoverable loss for any journalist who earns a reporter’s salary and is an undeniable intimidation tactic that essentially limits press freedom. In fact, since Mendes filed the suit in 2014, Valente has refrained from reporting on him.

Klouri stressed to Agência Pública that Mendes is not the main character of Valente's book, and that there is nothing in its content that offends his honor. The decision, according to him, goes against all  Supreme Court guidelines on freedom of expression. “Such is the absurdity, that [the sentence] does not even have precedents in the higher courts”, argued the lawyer. According to him, by this ruling, Mendes would become “a true co-author of the book,” violating the copyright and the journalist's “right to privacy, individuality, honor, and freedom of thought”. The lawyer also stated that it is inadmissible that the work “be demeaned with such violence” in view of the guarantee of freedom of expression in the practice of journalism provided by the Brazilian Constitution.

Published in January 2014 by Geração Editorial, the book “Operação Banqueiro” is an in-depth report based on  Federal Police investigations that led to the arrest of banker Daniel Dantas, from the Opportunity bank, - accused of money laundering, corruption and bribery of public officials - as part of "Operation Satiagraha", at the time the Federal Police’s biggest offensive against corruption. Over the course of the operation, Mendes, then president of the Supreme Court, twice within 72 hours, overturned the arrest warrants for Dantas requested by federal judge Fausto de Sanctis. In 2011, with the total annulment of the operation by the STJ, Dantas and the other defendants accused of passive corruption were released. The only people who ended up being convicted were the police chief responsible for the investigation, Protógenes Queiroz, for violating functional secrecy, and the journalist who immersed himself in this story for six years, between 2008 and 2014, to publish “Operação Banqueiro.”

The excerpt from the book in which Gilmar Mendes claims to be defamed is a 42-page chapter, “Um Caso Excepcional” [“An exceptional case”], where Valente builds a profile of Mendes and recounts controversial episodes of the justice's life, such as his clashes with the Prosecutor’s Office and the Federal Police, his work as legal advisor to the Presidency during the Fernando Collor and Fernando Henrique Cardoso administrations, his relationships with lawyers who had Opportunity bank among their clients and severe conflicts between Mendes and his colleagues. Among the arguments used to claim that the book was intended to attack his reputation, Gilmar Mendes classified the journalistic account as a “malicious distortion” of his biography. He also claims that the work accuses him of  “lack of impartiality” by not recusing himself from participating in the Dantas case due to his relationship with two Opportunity bank lawyers, Sérgio Bermudes and Arnoldo Wald. He also claims that Valente misrepresented the Habeas Corpus judgment granted by Mendes that secured the banker's release. Finally, he says that the journalist's account of suspected wiretapping in his office was “biased.” What irritated Mendes the most, however, was the description of his origins, as a member of the Mendes clan of the city of Diamantino, in the state of Mato Grosso. The Mendes family dominated local politics as members of the former Arena, a political party that supported the military dictatorship.

First instance judge Bueno Araújo, of the 15th Civil Court of Brasília, confronted Mendes’ allegations with excerpts from the 42 pages of the chapter cited in the lawsuit and dismissed them one by one. He determined that “the plaintiff's interpretation is too subjective to give rise to liability on the part of the defendant.” He also stated: “No value judgments were demonstrated and there is no way to conclude, unequivocally, that cause and effect relationships were established. That is, there is no way to say that the defendant meant that the plaintiff's family rose to power precisely because their city fell into decay. At most, a simultaneity of these events can be extracted,” pointed out the magistrate.

In the judge's interpretation, the right to criticize precedes the claims of a public figure. “ The press and the citizens are allowed to question a judge's impartiality without this constituting a direct attack on his impartiality, precisely because the magistrate is a figure who occupies a state post and, as such, is subject to the scrutiny of any citizen,” he wrote. And he added: “There is no way to say that the defendant was untruthful in his work.” Bueno Araújo also pointed out that Valente tried to interview Mendes and that it was he who refused to respond.

‘An attack on freedom of expression and information’

A name inextricably linked to investigative journalism in Brazil, Valente broke his silence and told Agência Pública that his conviction is unjust, has caused great harm to his personal and professional life, and that he considers it “an attack on freedom of expression and information.” Read the interview below:

What is your assessment of the sentence?

My book is far from being a biography of Supreme Justice Gilmar Mendes. He is only mentioned in one chapter, like several other characters. However, during an entire year preparing the book, I was careful to try to ask personally Gilmar Mendes' positions. He – who has constantly given interviews to the media over many years and still does – never agreed to talk to me about the numerous statements and decisions he made about Operation Satiagraha. Instead of discussing the matter face-to-face with me, he waited for the book to be released and filed the lawsuit. The trial court judge acquitted us (me and the publisher) after dismissing all the arguments presented by Mendes, one by one. But Mendes appealed with the exact same arguments, which were accepted by the judge presiding the case at the Federal District Court of Justice. The book was never submitted, for example, to a judicial examination, an essential measure because both my arguments and those of the first instance judge directly contradicted the conclusions of the judges of the Federal District Court of Justice. The Judiciary – namely: the Federal District Court of Justice, the STJ and the STF – has never taken the testimony of any person who could speak about what is written in the book, including me, who was never heard in any court in Brazil. The sentence accepted all of Gilmar Mendes' allegations, the same ones that had been thoroughly dismissed by the trial court judge.

What is the impact of the ruling on your personal and professional life?

I have been a reporter since I was 19 years old. I [started] in 1989, and during all this time I've dealt with thorny and complicated issues that involved countless accusations and suspicions against people and companies, such as police operations, parliamentary commissions of inquiry, judicial proceedings, and my own journalistic investigations. However, I have never been convicted in or out of my work practice. In 21 years at Folha de S. Paulo, I wrote about 2,500 articles, but I've only dealt with a single lawsuit, from which I was acquitted in all instances. Until 2016, I had never been convicted in any instance.

But everything changed when I wrote, using totally objective words, about a Supreme Justice. Based on Mendes’ allegations, judges from the appeals Court of Justice, the STJ and the STF started to refer to me using the worst terms and expressions, as if I were a criminal, an irresponsible person, who deserves to be severely punished. A person who has never been through what I have  – and I hope no one ever does –, which I consider to be entirely unfair and disproportionate, will not be able to understand what this means on a personal level. The first thing that comes to my mind are Brazilians thrown into jail on the basis of flimsy and even absurd legal decisions. If I’m already suffering all these consequences from a civil lawsuit, imagine what  Brazilians unjustly sentenced to jail go through.

In addition to my legal defense expenses and hours and hours spent working for my defense,  we were informed that the court now considers me a "joint debtor" of the publisher, even though I have already paid half of the determined compensation. The judicial decision, in its current form, condemns me to lose my patrimony and all the money I was able to save from over 32 years of work for a [future] retirement; the imposed amount is astronomical for a journalist like me, who survives solely on his salary. The Supreme Court itself had already decided years ago (in the decision of the ADPF 130) that it is necessary to observe a “moderation clause” when the plaintiff is a public official, because “every public official is under permanent scrutiny by society.” It also recommends that "the personal situation of the victim" be verified, so that the compensation does not become "a source of enrichment.” Again this was not observed in my case. With more than R$ 310,000 [US$ 60,000] it is possible to buy a luxury car, an apartment, or a house.

Do you feel forbidden from reporting on Gilmar Mendes?

Since he filed the lawsuit, eight years ago, I feel forbidden from conducting journalistic investigations into Supreme Justice Gilmar Mendes. And there has been no shortage of opportunities or people asking me to verify situations and facts concerning him. However, unlike justices who judge cases even though they have a relationship with people involved in the case, I recuse myself from carrying out such investigations. This is meant to avoid any ethical questions about myself and the two companies I've worked for since the book was published, Folha and UOL. In this sense, the lawsuit filed by Mendes had an immediate effect in restricting my journalistic work.

What, after all, is Gilmar Mendes accusing you of?

I'm sure that people who read the book, which has sold thousands of copies, know that I never offended or attacked Mendes. Just read the work. If I was critical at some point, that is an inseparable part of being a journalist who writes something about some reality, as the judge who acquitted me in the trial court well said. Every day hundreds of journalists are critical of some public servant somewhere in Brazil.

Upon filing the lawsuit, Mendes mixed eight topics whether or not they were in the book, including interviews I gave when I was launching the book. For example, my participation in the program “Roda Viva,” on TV Cultura, the full interview is available online. I challenge any Brazilian – and any judge – to find any offense directed at Supreme Justice Gilmar Mendes in that interview. If I had offended Gilmar Mendes in that program, he could, of course, use the Right of Reply mechanism, guaranteed by law. Did he use it? No. Mendes even used an article published on the website “Portal dos Jornalistas” that I – believe or not – never wrote. The website clarified that the article, which was immediately taken offline after I contacted them, had been written by their staff. I was accused by Mendes for a text that I never wrote, we demonstrated that I did not write it, and even so, the Judiciary ruled the case in favor of Mendes.

Of these eight topics, he constantly talks about an excerpt from the book that talks about his relationship with banker Daniel Dantas' lawyers. I explained, for example, that Mendes’ wife worked and [still] works in a law firm owned by an important lawyer who provided services to the same banker. Is there something wrong or untruthful about this? No. It's all true, so much so that it has been widely published by the press. And this was also admitted to in an interview Mendes’ wife gave to piauí magazine. And yet, I was convicted.

What does the ruling mean for independent journalism? What changes?

We don't need to look further to understand the message given by the Brazilian Judiciary, especially the Federal Supreme Court, in this decision: there is a limit to journalism and the limit is writing critically about a member of the Court. The impact [of this] is unimaginable, it is already in the minds of journalists who cover the Judiciary and is spreading across newsrooms in the form of self-censorship. People can ask: ‘but doesn't a judge have the right to file a lawsuit against a journalist?’ Yes, but there are two observations to be made here: 1. The concept of image and honor should be eased when a person holds high public office, especially when they are someone who exerts a strong political influence on the direction of the country. At the risk of preventing the free practice of journalism in the country. Can you imagine if every journalist who characterized Jair Bolsonaro as “genocidal” was prosecuted, tried and convicted? Bolsonaro would become a millionaire. This principle that takes into account the constant scrutiny of a high public official of the Republic [of Brazil] completely disappeared from my case. 2. Precisely because it is a lawsuit filed by a member of the Judiciary, even more being a member of the importance, power and influence of a Supreme Justice, the Judiciary should take extra indispensable measures to guarantee due legal process and the right to a full defense. Such as, for example, requesting expert analysis, taking depositions. By prosecuting a journalist, a member of the Supreme Court, which is an appeals court and has influence over the entire Judiciary, has the ball in their court. It would be like the National Federation of Journalists suing a judge.

What does the case represent for the press/freedom of expression in the context of democracy?

The lawsuit against me is already being immediately used as precedent in several cases for moral damages in different parts of the country. The repercussions are still incalculable. If the Supreme Court decides that a journalist can be sentenced under the terms I was sentenced, then the gate has been opened.

Do you intend to reprint “Operação Banqueiro”?

The Supreme Court decision, presided in this case by Supreme Justice Alexandre de Moraes, a colleague from the same building and the same court as Gilmar Mendes, resulted in the banning of my book from the Brazilian publishing market. It ruled that, in any future edition, we must publish the full content not only of the ruling by the Federal District Court of Justice, but also the full content of Supreme Justice Gilmar Mendes' lawsuit. The publisher and I decided the book will never be reprinted under these terms. When the last copies are sold, it will disappear from bookstores. Reprinting it would be an intellectual and editorial fraud, unless I signed the book together with Supreme Justice Gilmar Mendes and the judge from the Federal District Court of Justice, because essentially they would become co-authors. Our calculation is that the book would have about 200 additional pages, that is, another work grafted onto my work.

I consider this an attack on freedom of expression and information. Based on this Supreme Court decision, if someone obtains a favorable decision in a moral damages case, it is enough to forbid the commercialization of an entire book. Just write a 100 to 200-page motion. Not even the worst denialist works, filled with fake news, were subject to such a ruling by the Federal Supreme Court. All because I wrote about a Supreme Justice and he didn't like it.

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