By Júlio Lubianco
Article republished with authorization from the Knight Center for Journalism in the Americas
The Brazilian Press Association (ABI, for its acronym in Portuguese) and the Brazilian Association of Investigative Journalism (Abraji) decided to take action against what they classify as the judicial harassment of journalists. The ABI filed two lawsuits with the Federal Supreme Court to curb the abuse of lawsuits against journalists and media companies. Abraji has already launched a program to provide legal support to press professionals who respond to lawsuits as a result of their professional activity.
The two initiatives have similar objectives: to prevent journalists and companies from being silenced because they are unable to bear defence costs and pay any possible damages. According to a survey by Abraji, since 2002, journalists and journalism companies have been the target of more than 5,000 lawsuits for calunia and defamation, charged with paying large damages and removing content. Most of the claimants are politicians.
ABI disputes the abuse of requests for compensation for material and moral damages in order to prevent the free action of journalists and the press. In one of the lawsuits, the association argues, “only the willful or seriously negligent disclosure of false news can legitimize convictions.” The intention is that mistakes without bad faith can cause irreparable financial damage if it results in a conviction.
“The current scenario is that of a real massacre against journalists and other communicators. The best-known cases are those of journalist Luis Nassif, the influencer Felipe Neto and the writer João Paulo Cuenca. The first lawsuit that the ABI entered in the Supreme Court, a direct unconstitutionality action (ADI), in which it asks the Supreme Court for the liability of newspapers and journalists to only occur in the civil sphere when it is demonstrated that there were malice and guilt in the dissemination of false news.
The purpose of the request is to promote freedom of expression and information, restraining the abuse of reparation actions for moral damages filed against journalists and the press” – Paulo Jerônimo de Sousa, ABI president, told LatAm Journalism Review.
The case of Nassif is emblematic. With a career longer than 50 years, he has maintained Portal GGN since 2013. In December, he wrote that he is “legally marked to die for criticism of the Judiciary, fulfilling my role as a journalist,” in an article listing five lawsuits against himself, filed by judges and politicians.
“I comply with my journalistic responsibilities knowing that, at the next corner, another judge may appear ordering the blocking of my accounts. Hence the relevance of ADIN (Direct Unconstitutionality Action) proposed yesterday [April 11] to the Supreme Court by ABI. It is a guarantee that the abuse of judges will not compromise your right to be informed about acts of public figures,” Nassif wrote in an article published on the ABI website.
In the other lawsuit also filed with the Supreme Court, the ABI asks the justices to assure journalists “the right not to respond to criminal lawsuits for defamation for the simple fact of exercising their profession with fearlessness.” With that, the ABI wants journalists to be subject to this type of action only in cases of fabrication of information or systematic propagation of false news.
One of the clearest cases of judicial harassment against a Brazilian journalist occurred in 2007, when reporter Elvira Lobato was the target of 111 lawsuits. The reason was the report “Universal reaches 30 years of age with a business empire” published in Folha de S.Paulo.
The article showed how the Universal Church of the Kingdom of God, the largest evangelical Neo-Pentecostal denomination, had built an “empire,” which includes TV and radio stations, publishing houses, newspapers and even an air taxi company. Even though she was found innocent in all cases, the wear and tear caused profound consequences, such as the journalist’s decision to leave the profession.
“When the lawsuits started, much to our complete surprise, I felt unable to continue covering the Universal Church of the Kingdom of God. Not that there was any court order, but because I thought I had lost the most important thing a journalist must have: impartiality. If there were 111 lawsuits against me, I was no longer impartial in matters of the church. As a result, it neutralized me completely,” Lobato said in an interview with TV Cultura in December 2020.” It was so impactful for me, this process was so painful that it ended up precipitating my retirement.”
For independent journalists and small outlets, a civil conviction may represent the end. This is the case of Jornal Já, from Porto Alegre. In 2001, after a series of reports about a local politician accused of corruption, the newspaper was sued. It was acquitted criminally but was convicted in the civil arena to pay moral damages to the accused’s mother, which destabilized the outlet’s operation and led to the end of its print edition.
Legal advice for journalists
On another front of the same battle, Abraji launched the Legal Protection Program for Journalists. The initiative is a “response to the growing threats to press freedom and judicial harassment of journalists and communicators in Brazil,” Abraji said in a statement announcing the program.
“I would highlight two more frequent types of judicial harassment against journalists, both with the aim of intimidating and restricting the free exercise of the profession. The first are requests to remove content, mapped by the Ctrl-X project. There are more than 5,500 suits in the database, since the beginning of the project in 2014, most of which were filed by politicians.
The second is the use of Special Civil Courts (JECs), created to solve simpler causes, but which have been used to prosecute journalists. A recent example of using the JEC is the case of columnist Reinaldo Azevedo, who was prosecuted at the JEC in Curitiba by attorney Deltan Dallagnol” – said Abraji’s executive secretary, Cristina Zahar.
In the first year, the goal is to defend up to six journalists who are victims of attempted silencing through lawsuits and claims for compensation far beyond their financial capabilities. For this reason, Abraji will prioritize independent professionals and freelancers who do not have the support of lawyers hired by media companies. The program also considers helping journalists who want to prosecute those who harass them in court for moral damages.
Interested journalists and communicators can register, and the cases will be analyzed by Abraji’s legal counsel, with priority given to the most urgent cases and those with shorter deadlines.