Brazilian judge revokes authorization to access journalist's phone records

Update (Dec. 2, 2016):  A judge has revoked authorization to access the telephone records of journalist Andreza Matais.

A Såo Paulo court recently ruled that investigators could access Matais’ telephone records. The decision was related to a series of reports written by the journalist in Folha de S. Paulo newspaper in 2012. Matais now works at O Estado de S. Paulo.

Judge Rubens Pedreiro Lopes of the São Paulo Police Investigations Department made the decision to revoke that authorization on Dec. 2.

O Estado de S. Paulo reported that the defense, which filed the request to look at the prior decision, said the journalist was not being investigated and had the right to full exercise of freedom of the press.

Matais posted the following on Twitter: “Dears, the judge reconsidered the request to break my confidentiality. That episodes like this never happen again!”

Original (Nov. 30, 2016): The national associations of newspapers, magazines and broadcast companies in Brazil said that a São Paulo court's decision in favor of accessing telephone records of journalist Andreza Matais violates source confidentiality. The ruling is related to a series of reports published in Folha de S. Paulo newspaper in 2012.

Matais currently works for the newspaper O Estado de S. Paulo, as editor of the Estadão Column in Brasilia.

The reporter's writings revealed that an investigation had been instituted by Banco do Brasil to research a suspicious move of R $ 1 million (about US $293,000) for the benefit of former vice president Allan Toledo.

According to Folha, Toledo was arrested in 2015, accused of participating in a tax evasion scheme and money laundering.

The investigation that resulted in the judge's ruling that allowed the records to be accessed was opened at the request of Toledo himself. In order to open access to the reporter's telephone information, Judge Rubens Pedreiro Lopes of the Police Investigations Department said that the measure was "indispensable for the continuation of investigations."

In her Twitter profile, Matais published a message about what happened: "There are personal problems and there are causes. Freedom of the press is a most noble cause."

According to Folha, the journalist's defense asked that the decision be reconsidered. Lawyer Philippe Nascimento, who represents the journalist at the newspaper's request, dismissed the measure as unconstitutional.

"You can never break the telephonic privacy of a journalist, because the confidentiality of the source and the freedom of the press is at risk," the lawyer told Folha.

He claimed that there had been an error in the process: the request for the breaking of confidentiality was directed at the conversations of another person involved in the investigations, not the journalist.

Matais did not appear at the process to safeguard the secrecy of the source, a right guaranteed by the Constitution, according to information from Folha.

Since 2013, other requests to access the journalists' phone data were made, but had been denied following objections from the public prosecutor.

Entities such as the Brazilian Association of Investigative Journalism (Abraji for its acronym in Portuguese), the Brazilian Bar Association (OAB) and the National Newspaper Association (ANJ) issued notes criticizing the decision.

Abraji called the measure "unacceptable" and noted that the decision was "made in secret" on Nov. 8, 2016. The association further states that the judge authorized the Civil Police of São Paulo to "access the records of three cell phones used by Andreza" to make the stories.

According to the association, investigator Rui Ferraz Fontes requested the break of confidentiality to discover the identity of the source of the reporter. Abraji criticized public prosecutor Mônica Magarinos Torralbo Gimenez, who backed the decision, even after three other colleagues spoke out against the measure.

"It is with indignation that Abraji comes once again to remind members of the Police, the Public Ministry and the Judiciary that the secrecy of the source is a constitutional guarantee (Article 5, item XIV) and can not be violated. Abraji repudiates the decision of Lopes and begs the courts to reverse it, complying with the Federal Constitution and observing the democratic State of law in which the country still lives," the association said in a statement.

ANJ, as well as the Brazilian Association of Radio and Television Broadcasters (ABERT) and the National Association of Magazine Editors (ANER), also condemned the attitude of the Justice of São Paulo and requested that the measure be reviewed. The associations reinforced that "there is no journalism and no press freedom without the source's secrecy".

"Breaking the confidentiality of a journalist's phone implies a very serious violation of a constitutional right and the free exercise of the profession," ANJ said.

The national president of the OAB, Claudio Lamachia, also repudiated the decision. He said violating the constitutional protection of press work and the secrecy of sources is a way of attacking the right of society to be well informed.

"I will repeat to exhaustion: crime is not combated by committing another crime. It will only result in damages for the country .... The OAB is against all the setbacks and affronts to the Democratic State of Law perpetrated by public agents who should respect the law, not infringe on it," he said.

He recalled that violations of professional rights are frequent in Brazil and mentioned the case of the journalist of Época magazine, Murilo Ramos. In October, the court also ruled in favor of breaching his telephone privacy. Like Matais, Ramos is not suspected of any crime.

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.