Brazilian judge censors O Globo and Folha for publishing first lady's conversations with blackmailer; entities protest

Update (Feb. 15): Judge Arnaldo Camanho de Assis, of the Federal District Court of Justice, suspended the censorship of Folha de S. Paulo's report on the blackmail carried out by a hacker against the first lady of Brazil, Marcela Temer. The decision came after Folha filed an appeal.

With this new development, the original report returned to the newspaper's website. In the decision, Assis wrote that it is not for a state body, like the Judiciary, to establish in advance "what should and should not be published in the press."

The injunction cancels the Feb. 10 decision of Judge Hilmar Castelo Branco Raposo Filha, of the 21st Civil Court of Brasilia. O Globo, which was also affected, will still appeal the decision.

On Feb. 14, President Michel Temer stated in a note that he is committed to promoting freedom of the press and is aligned with "movements of the representative entities of Brazilian press in defense of these principles and values."

Original (Feb. 13): At the request of the first lady of Brazil, a judge ruled that newspaper O Globo and Folha de S. Paulo should withdraw reports about the attempted extortion that Marcela Temer suffered from a hacker last year. The court order was considered "unacceptable censorship" by Folha. Journalist organizations and media outlets endorsed the newspaper's position and protested against the judge's decision.

The reports spread the content of messages exchanged between the first lady and the hacker Silvonei de Jesus Souza, sentenced to 5 years and 10 months in prison in October 2016. He tried to blackmail Marcela Temer with content stolen from her cell phone.

Souza demanded R $ 300,000 (about US $96,000) not to divulge audio and photos found on the first lady's cell phone, G1 reported. “Well, I thought this video drags the name of your husband in the mud, when you said that he has a marketer who plays the part on a low level...I thought of winning something with it!,” said one of the messages, also released by magazine Carta Capital.

In a joint statement, the Brazilian Association of Radio and Television Broadcasters (Abert), the National Association of Magazine Editors (Aner) and the National Association of Newspapers (ANJ) reported that "the content of the messages is contained in the police inquiry attached to the criminal action of Souza, which is no longer under secrecy of the court."

In fact, Folha de S. Paulo published the numbers of the processes against the hacker at the São Paulo Court of Justice, which permits online access to the content of the messages to any lawyer or person registered on the court website.

Shortly after the publication of the two articles about the messages, on Feb. 10, Judge Hilmar Castelo Branco Raposo Filho of the 21st Civil Court of Brasilia granted an injunction in favor of the removal of the publications. According to the magistrate's order, "the inviolability of intimacy has clear legal support."

Both outlets withdrew the reports from their sites on Feb. 13 after receiving the subpoena. According to O Globo, advisors to President Michel Temer contacted the Rio newspaper on Friday night to discuss the matter and alert them of the court decision. However, the report had already been published on the website of Globo, which waited for official notification to remove it. Folha was notified at 9:05 on Feb. 13.

The first lady also requested a fine of R $ 500,000 (about US $160,800) from the two outlets for the stories posted to their sites and for printed issues sold that contained the material in question. However, the judge established a penalty of R $ 50,000 (about US $16,000) per day for both media outlets.

Abert, Aner and ANJ considered the judicial decision "a curtailment of freedom of the press and expect the sentence to be reviewed or amended immediately, guaranteeing the media the constitutional right to bring information of public interest to the population."

On Feb. 11, the Brazilian Association for Investigative Journalism (Abraji) also repudiated censorship, reiterating that "it is against any kind of censorship" and calling for "the annulment of the absurd decision of the 21st Civil Court of Brasília." "Preventing reporters from publishing reports is detrimental not only to the right to information, but also to the journalist's role in overseeing public authority," the statement said.

Abraji recalled a decision of the Federal Supreme Court (STF for its acronym in Portuguese) of 2015, in which Minister Carmen Lúcia declared "shutting your mouth is over, the Constitution says so.” "Censorship was banned by the Constitution of 1988 and the STF in its decision in the ADPF 130, which overthrew the Press Law. Freedom of the press and freedom of expression are fundamental in any democracy," the organization said.

The president of the National Federation of Journalists (Fenaj), Maria José Braga, told Folha that the entity "is alert to the position that the Brazilian judiciary has taken to limit, through decisions, the work of the press." According to Fenaj, the Judiciary prevented the publication of reports 16 times in the past year.

Grupo Folha legal director, Orlando Molina, said the decision is a "brutal" attack on press freedom. "This constitutes censorship on the press," he told Folha.

The newspaper appealed the decision Monday. Folha's lawyer, Tais Gasparian, filed a petition arguing that the report addresses an important issue and "does not disclose gossip or seek to satisfy general curiosity about the lives of the powerful. The facts disclosed do not relate to the privacy of the aggravated party contrary to what the initial petition supports, but they refer to the suspicion aimed at the President of the Republic.”

As the hacker threatens the reputation of President Michel Temer in the messages, the lawyer argued that "The information that surfaced and motivated the publication is that the content hacked, according to the records of the criminal action, could potentially reach the president of the Republic [...] In the case of a public matter and concerning the Presidency of the Republic, why could the information not have been divulged?"

Finally, the appeal states that the first lady does not have the right to privacy, "not only because she occupies a highly relevant public position, but also because, as already mentioned, all the information disclosed has been extracted from legal proceedings with ample publicity."

The Brazilian government has denied that the judicial measure constitutes censorship. In a statement, the federal government said the lawsuit is supported by rules, such as the Carolina Dieckmann Act, which protect the right to privacy of people who have intimacy violated in digital media.

According to O Globo, President Michel Temer responded angrily to journalists when asked about the censorship issue. "There was no such thing, you know there was not," he said.

Several opposition politicians from the Chamber of Deputies and Senate also criticized the ruling, according to Folha. Socialist and Freedom Party (PSOL) assemblyman Chico Alencar called attention to the fact that Gustavo Rocha, deputy chief of legal affairs of the Casa Civil (Chief of Staff), filed the action. "The fact that he takes the initiative is revealing that it is a political issue, not a personal one," he told Folha.

Abraji's executive secretary, Guilherme Alpendre, also criticized Rocha's involvement in the action in an interview with CBN radio.

"When you have the first lady [involved], who also has a lawyer attached to the Federal Attorney General’s Office, we have a rather serious problem. It is the federal State, the Union, entering with an action that contradicts one of the principles of the Constitution, which is freedom of expression. This opens a pretty dangerous precedent,” he said.

In a statement, the Brazilian government stated that the lawyer Gustavo Rocha worked as a representative of Marcela Temer, not on behalf of the Executive. According to the federal government, despite his position in the Casa Civil, Rocha "is not prevented from exercising" his profession.

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.