UPDATE: Censored Brazilian journalist is allowed to republish news about Operation Car Wash

Update (June 16, 2016): Journalist Marcelo Auler was permitted to republish eight of the ten articles censored on his blog. Judge Vanessa Bassani threw out the lawsuit for compensation filed by investigator Maurício Moscardi Grillo after finding an error in the original petition: the home address of the investigator is located in a neighborhood served by another court, which means the original judge should not have heard the case.

With this decision, the journalist is no longer prevented from “publishing new articles with content that could be interpreted as offensive to the complainant.” The two other articles involving investigator Erika Mialik Marena are still censored. The eight articles that had previously been censured can now be accessed on the journalist’s blog.

Original Report (June 3, 2016): The Rio de Janeiro-based journalist Marcelo Auler is fighting for justice against an authoritarian measure imposed by the courts: prior censorship. Auler is prohibited from publishing criticism of the actions of the Federal Police, as well as information about alleged irregularities during police investigations related to Operation Car Wash – considered the biggest corruption investigation ever carried out in the country. The judgments were handed down on a preliminary basis, without the journalist having been given the right to defend himself, according to what Auler published on his blog.

For Auler, these decisions are not a threat solely to his journalistic work, but to the Brazilian press as a whole.

“It is journalism that is at stake. People have the right to get justice and complain about what I wrote, and I have the obligation to prove that what I wrote is true,” Auler said to the Knight Center for Journalism in the Americas. “I would do this and that does not bother me to do so. I have proof of what I wrote. You can even argue whether the interpretation is correct, but you cannot censor.”

After the decision of two special courts in Curitiba, 10 reports had to be taken down from his blog and future publications were subject to prior censorship. The first decision, issued on May 30 by Judge Nei Roberto de Barros Guimaraes, answered the request of federal investigator Erika Mialik Marena and ordered the removal of two articles published in March of this year in which Auler mentions the alleged involvement of the investigator to leaking information about Operation Car Wash.

The second decision, issued by Judge Vanessa Bassani, ordered the removal of eight articles published between November 2015 and April 2016 that mentioned the work of the investigator Maurício Moscardi Grillo and that criticize the alleged illegal wiretapping and the high costs of renovation for one of the Federal Police units.

The court ruling also prohibits the publication of future reports, determining that the journalist “refrains from publishing new materials in his blog with content that can be interpreted as offensive to the complainant” (in this case, the investigator Moscardi).

Auler says he is appealing the decisions and that the next step will be to file a complaint with the Supreme Court as the decisions contrast with a position previously issued by that court.

According to the retired judge of the Supreme Court, Carlos Velloso, the decision of Judge Bassani is a violation of what is provided in the Constitution.

“Prior censorship is no longer in effect in the country and became inadmissible after the Federal Constitution of 1988 because before there were legal loopholes that permitted it. So, for almost 28 years the practice has been prohibited in Brazil,” Velloso said to the site Consultor Juridico.

Attorney Márcia Mialik Marena, representative of the federal investigators, did not return calls from the Knight Center. But, in a statement sent to newspaper Folha de S. Pauloshe said that the investigators respect investigative journalism, whether positive or negative, in relation to Operation Car Wash.

She also said Auler “more than criticized, went on to repeatedly accuse them of crimes, despite the fact that they have never been subject to disciplinary or criminal proceedings in their careers.”

Journalistic organizations issued notes repudiating the judicial decisions. The Brazilian Association of Investigative Journalism said that the ban on publishing future reports is a serious measure “which sets prior censorship – an unconstitutional matter incompatible with a full democracy.”

According to the Brazilian Press Association (ABI for its initials in Portuguese), the judicial measures represent a “dangerous precedent” because they use mechanisms of control on expression of thought characteristic to the military dictatorship.

“In ABI’s view, the authorities who felt offended by the blog have other legal instruments for correcting the accusations that addressed them without the need of reviving procedures of authoritarian character that were believed to have been buried forever with the end of the 1964 regime,” the organization said in a statement.

Although expressly forbidden in the Federal Constitution, censorship has been a recurring practice in the decisions of judges of lower courts that have decided to not only remove articles already published, but to also prohibit the publication of future reports.

Last year, the nonprofit Repórter Brasil was prohibited from publishing information about a rescue of workers who have been exposed to conditions similar to slavery. A survey conducted by the Knight Center for Journalism in the Americas showed that, between 2012 and 2013, the country registered 25 cases in which the courts were used as instruments of censorship.

An emblematic case is that of newspaper O Estado de S. Paulo, which has been under censorship for almost seven years. On July 31, 2009, the newspaper was prohibited from publishing information about a Federal Police operation in which businessman Fernando Sarney, son of Senator José Sarney, was being investigated. The prior censorship determined in 2009 by Judge Darcio Vieira was upheld in 2013 and the case is pending before the Supreme Court.

Brazil is ranked 104 in the 2016 World Press Freedom Index from Reporters Without Borders.

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.