Supreme Court of Brazil sets precedent to combat judicial harassment of journalists in Brazil

Brazilian journalist Elvira Lobato still remembers how surprised she was by the impact of one of her articles published in Folha de S.Paulo in December 2007. Lobato has covered the telecommunications sector since the 90s. This led her to write about businesses of ​​the Universal Church of the Kingdom of God, one of the largest evangelical churches in Brazil, which then owned 23 TV channels, dozens of radio stations and newspapers.

In the text “Universal chega aos 30 anos com império empresarial” (Universal reaches 30 years with a business empire), published by Folha on Dec. 15, 2007, Lobato reported that one of the Church's companies was registered in the tax haven of the island of Jersey, in the English Channel. 

“The link appears in the company’s records at the São Paulo Commercial Board. One hypothesis is that the tithes of the faithful are stored in tax havens,” the reporter wrote.

The church’s response came in January. In 111 districts spread across Brazil, from the interior of Acre to Rio Grande do Sul, a profusion of lawsuits filed by churchgoers and pastors targeted the journalist.

“The lawsuits were divided into groups. There were four or five models with absolutely identical texts. There were always demands for compensation, with people saying they were offended in their faith. They did not question a single line of the text, but claimed to have become an object of ridicule. They said they were individual lawsuits, but that was impossible. They repeated the same phrases, and this showed that they were made in a package and orchestrated,” Lobato recently told LatAm Journalism Review (LJR).

Until then unknown, the tactic of collective and coordinated use of the justice system to persecute journalists tormented Lobato for the next two years. 

“Sometimes, I needed to appear in courts in Amazonas, Goiás and Santa Catarina on the same day,” she remembers. 

Lobato emerged victorious in all cases, sometimes winning compensation from those who sued her.

This type of procedure has just been declared a form of judicial harassment against journalists by Brazil’s Supreme Federal Court (STF, for its acronym in Portuguese). On May 22, the court established a precedent valid for all Brazilian courts that “judicial harassment occurs when several legal actions are initiated against the same journalist or media company, in different cities and states, based on the same fact, with the purpose of silencing or intimidating.”

According to the court, these situations, in addition to harming the person's defense, can cause them to stop publishing about controversial subjects for fear of being held responsible – that is, it encourages self-censorship. As stated in the STF debates, in a case like Lobato's, from now on, the lawsuits must be gathered and judged in the place where the accused lives or the company is headquartered. The precedent has immediate application in all courts in the country.

In addition, the STF also reiterated jurisprudence already prevailing in the court, which must now also be followed by all courts in Brazil, that “the civil liability of journalists or press organizations will only be established in an unequivocal case of malice or serious negligence (evident professional negligence in investigating the facts).”

Both decisions establish important precedents to inhibit judicial persecution in Brazil, according to Letícia Kleim, legal coordinator of the Brazilian Association of Investigative Journalism (Abraji), the organization that proposed one of the two actions judged jointly by the STF – the other came from the Brazilian Press Association.

Still, they are not enough to end the abuse of the courts with the purpose of inhibiting the press, the Abraji advisor said.

“We consider the decisions to be very important advances, but they will not completely inhibit judicial harassment. There are other ways to attack journalists. It’s a first step,” Kleim told LJR.

Coordinated harassment

According to a survey by Abraji's Monitor of Judicial Harassment against Journalists, a tool that collects and analyzes information about abusive legal proceedings against the practice of journalism in Brazil, there were 25 cases of coordinated litigation, each of them with multiple lawsuits, between 2009 and March 2024, in a universe of 654 cases of different types of judicial harassment.

In addition to that of Lobato, the most notorious case of coordinated judicial harassment is that of writer João Paulo Cuenca, who faced 145 lawsuits across Brazil from the Universal Church due to an opinion piece published in 2020. As of March 2023, the writer had already won 126 cases, corresponding to all cases that had been judged. According to the law firm that represents him, there are still more cases headed to trial.

Among other cases of coordinated actions, according to Abraji, there is the candidate for federal deputy Guilherme Oliveira against independent journalists from the city of Codó, in Maranhão (47 cases); the Associação Nacional Movimento Pró Armas (17 cases); and members of the public prosecutor’s office of Paraná against professionals from the newspaper Gazeta do Povo who in 2016 published articles about “super salaries” in the public prosecutor’s office.

In terms of number of lawsuits, the majority of these cases take place in Special Civil Courts (JEC), bodies of the Federal Court that judge simpler cases known as small claims. Created to facilitate access to justice and take it to remote areas, the courts judge actions that cannot be unified and require the presence of the defendant.

‘“I went to areas far from large centers and the faithful and pastors had no knowledge of the articles. Sometimes, I arrived at the hearing and the judge just declared that the case was open, but nothing else happened,” Lobato remembers.

According to the STF statement, “if judicial harassment is determined, the defendant may request that all lawsuits be joined in the court of their domicile.” However, the details of how this should happen are unclear, because this depends on the official publication of the ruling, which could take several months or even years.

According to lawyer André Matheus, a specialist in freedom of expression who, through the legal center Clínica UERJ Direito, acted as a friend of the court in the STF trial, the decision significantly improves defense conditions.

“The journalist or communicator will no longer need to travel to a district for a conciliation hearing, incurring a large economic and physical expense,” Matheus said.

Guilherme Barbosa, representative of Reporters Without Borders in Brazil, agrees.

“The decision introduces procedures and mechanisms so that journalists, faced with judicial harassment, have at least the possibility of defenses that are not so onerous and significantly compromise their work,” Barbosa told LJR.

Other harassment

Although all press freedom experts contacted agree that the decision on coordinated processes is important, they add that it is insufficient to make sure that the courts are not abused against journalists.

Abraji says there are four situations of judicial harassment against journalists.

In addition to the use of several lawsuits by different people against the same target, there are also lawsuits by one author against several targets, a scenario that Abraji classifies as a “litigante contumaz” (roughly, persistent litigant).

In a third case, there are lawsuits that ask for excessive compensation, such as, according to Letícia Kleim, the case of journalist Rubens Valente, sued by STF Minister Gilmar Mendes.

Finally, there is the case of using criminal lawsuits instead of civil ones, as in the case of journalist Schirlei Alves.

“In all cases, it is necessary to make use of disparities of power and have an intimidating effect. It is necessary to use inequalities that prevent defense on equal footing,” Kleim said.

The STF's decision covers the first of the four situations considered by Abraji, but does not concern the other three.

Malice or serious guilt

As LJR has covered for years, cases of judicial harassment against the press have intensified in Brazil.

The STF made another decision in the trial to combat the practice. According to it, in the case of publishing news involving public figures or matters of social interest, the journalist's civil liability depends on whether the professional acted with malice and bad faith – the so-called “actual malice standard.”

urt had already had this understanding in other judgments, and has now established it as a binding precedent, applicable in all courts in the country.

“We have been fighting for this for some time. It means that a mere error cannot be considered illegal. This is part of the life of society and part of journalistic work. It is necessary to establish the malice of wanting to disclose untrue information or the serious guilt of the journalist. This is very important, because it can help us close many cases before they reach analysis [by a court],” André Matheus said.

Guilherme Barbosa, from RSF, understands that the decision takes place in a context of growing dissemination of false information, which requires clearer parameters on what is or is not disinformation.

“In recent years, the national and global scenario demand more in-depth discussions about the integrity of information; on how to ensure that the information published and disseminated not only by the press, but also on social networks and in the information environment as a whole, is reliable, true and complete,” he said.

Even so, he notes, there are limits to interpretation in this decision. Courts across Brazil may diverge from the STF's understanding of what constitutes malice, Barbosa said.

“There may be divergent interpretations in the courts, especially in the courts of first and second instance, which may lead to violations of press freedom,” he said.

According to Letícia Kleim, the decisions could also have beneficial effects in other countries in the region.

“Brazil has always been an extreme and very worrying example in terms of judicial harassment. These decisions are expected to contribute to a positive regional impact.”

Translated by Teresa Mioli
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