Case Summary and Outcome

The Federal Supreme Court of Brazil (STF) delivered a judgment identifying and preventing Strategic Lawsuits Against Public Participation (SLAPPs). Two media associations had filed separate applications seeking orders from the Court to recognize the judicial harassment created by the filing of multiple compensatory lawsuits in different cities over the same news report or story and to provide constitutional interpretations of various law governing those types of lawsuits. The Court found this practice to be an abusive use of legal action, burdening journalists with the need to defend themselves in various locations for the same incident. Recognizing the SLAPP aspects of such cases, the Court provided a constitutional interpretation of the Brazilian Civil Code and Civil Procedure Code, stipulating that cases of judicial harassment against freedom of expression and the press — characterized by the use of multiple lawsuits across different jurisdictions aimed at obstructing the defense rights of journalists or media outlets — must be consolidated for unified adjudication in the defendant’s local jurisdiction. The Court also found that civil liability for journalists or media outlets would only be established in cases involving deliberate misconduct and gross negligence.

Facts

On April 8, 2021, the Brazilian Press Association (ABI) filed a Direct Action for the Declaration of Unconstitutionality (ADI 6792/DF) with the Supreme Federal Court (STF). The ABI argued that lawsuits seeking compensation for damages against news and reports made by journalists and media outlets were being used to suppress the work of journalists and press organizations. It described the pattern of multiple lawsuits being filed across different jurisdictions for the same story, with the aim of obstructing the defense rights of journalists or media outlets. The ABI emphasized that journalists should not face legal repercussions for reporting in good faith on issues like corruption or misconduct that are not definitively proven and underscored that legal consequences should only arise from intentional or grossly negligent dissemination of false information. The ABI asked the STF to recognize that judicial harassment inflicts collective harm, which warrants compensation, and requested constitutional interpretations of laws such as the Civil Procedure Code and Civil Code to uphold freedom of expression, journalistic freedom, and the right to information. ABI submitted that there should be a practice where lawsuits brought against a single journalist and media outlet in various jurisdictions be consolidated in the media party’s jurisdiction as this would prevent intimidation tactics against journalists and smaller media outlets.

On December 17, 2021, the Brazilian Association of Investigative Journalism (ABRAJI) filed a separate Direct Action for the Declaration of Unconstitutionality (ADI 7055/DF) with the STF, seeking constitutional interpretations of key provisions in the Code of Civil Procedure and Law No. 9.099/1995 (Small Claims Court Law). The ABRAJI also argued that cases of judicial harassment should be tried in the jurisdiction of the journalist or media outlet involved, advocating for the consolidation of repetitive cases and emphasized that this approach would uphold due process, broad defense, and timely proceedings, while protecting freedom of the press, communication, and expression of thought under the Brazilian Constitution.

Due to their shared thematic focus, the STF reviewed both cases together.

Decision Overview

Justice Rosa Weber was the rapporteur of the Court. However, Justice Luis Roberto Barroso wrote the majority decision, joined with Justices Cristiano Zanin and André Mendonça.

The central issue before the Court was whether filing multiple lawsuits in different jurisdictions against the same news report or story constituted an abuse of legal process (or judicial harassment), representing a violation of freedom of expression and press freedom. The Court also had to consider whether there should be a constitutional interpretation of the Civil Procedure Code and Small Claims Law on whether to centralize these lawsuits in the defendant’s domicile, rather than the plaintiff’s, as stipulated by law, and of the Brazilian Civil Code respecting freedom of expression and press freedom on the circumstances under which journalists or media outlets could be held civilly liable.

The first reading of the judgment took place on September 22, 2023, when the Rapporteur, Justice Rosa Weber, delivered her opinion. Justice Weber would have partially granted the requests to define that there is an illicit act which gives rise to the rise to the obligation to repair moral damage following the publication of dissemination of opinions, news, information, or ideas in the press or social media. This illicit act “requires the factual presupposition that the content corresponds to a threat, intimidation, incitement, or command to discrimination, hostility, or violence, including psychological or moral violence; the deliberate spread of misinformation; manipulation of vulnerable groups; malicious attack on someone’s reputation; negligent fact-checking; risk to national security, public order, health, or morality; or when it constitutes propaganda in favor of war, civil war, armed or violent insurrection, or incitement to national, racial, or religious hatred”.

At this stage, Justice Barroso requested a vista – a suspension of the judgment and an opportunity to review the case file in more detail.

The second reading of the judgment took place on May 16, 2024 where Justice Luís Roberto Barroso delivered his opinion. This judgment became the majority judgment as the STF Court rules stipulate that when the rapporteur’s judgment is in the minority, the justice with the majority opinion drafts the final decision.

Judge Barroso fully accepted the requests of the ABI and ABRAJI, and established the following definition of judicial harassment: “[j]udicial harassment compromising freedom of expression constitutes the filing of numerous lawsuits regarding the same facts, in different jurisdictions, with the intention or effect of constraining a journalist or media outlet, making their defense difficult or excessively burdensome”. Justice Barroso stated that once judicial harassment is established, “the defendant may request the consolidation of all actions in their domicile’s jurisdiction”, and that “the civil liability of journalists or media outlets will only be established in unequivocal cases of malice or gross negligence”.

The reading of the judgment was suspended and resumed on May 22, 2024 when the Court, by a majority of opinions, provided a constitutional interpretation of Article 53 of the Code of Civil Procedure, stating that “in cases of judicial harassment against freedom of expression, characterized by the filing of multiple lawsuits regarding the same facts in different jurisdictions with the clear intent to undermine the defense rights of journalists or media outlets, the cases must be consolidated for joint judgment in the defendant’s domicile”. The Court also provided a constitutional interpretation to Articles 186 and 927, caput, of the Civil Code, establishing that “the civil liability of journalists, in the case of news dissemination involving public figures or matters of social interest, depends on the journalist having acted with malice or gross negligence, excluding the possibility of liability in cases of mere value judgments, opinions, or criticisms, or the dissemination of true information on matters of public interest”.

By a majority of opinions, the judgment thesis proposed by Justice Luis Roberto Barroso was accepted, with the addition of the definition of malice or gross negligence: “Judicial harassment compromising freedom of expression constitutes the filing of numerous lawsuits regarding the same facts, in different jurisdictions, with the intention or effect of constraining a journalist or media outlet, making their defense difficult or excessively burdensome. Once judicial harassment is established, the defendant may request the consolidation of all actions in their domicile’s jurisdiction. The civil liability of journalists or media outlets will only be established in unequivocal cases of deliberate misconduct or gross negligence, which involve the deliberate dissemination of false information, intentional harm, or severe misconduct”.

Note: The full opinions have not been officially released, and once the Brazilian Supreme Court makes them available, we will update this page.