Case Summary and Outcome

A Brazilian court made a preliminary order for the removal of false social media content and prohibited the future publication of similar posts about a journalist. After a televised electoral debate, a state representative falsely accused the journalist of receiving money to criticize a presidential candidate, with the aim of discrediting her journalism and also made similar allegations on Twitter. The Court emphasized that while free speech is a fundamental right, it must be balanced with the protection of honor and a free press. Given the harmful and untrue nature of the posts the Court ruled that they should be removed and future posts prohibited.

Facts

On September 13, 2022, the Brazilian free television network, TV Cultura, the daily newspaper, Folha de São Paulo, and internet news portal, Uol, jointly hosted an electoral debate with the candidates for the Governorship of São Paulo. During the debate, Douglas Garcia Bispo dos Santos, then a state representative in São Paulo, approached journalist Vera Magalhães while filming with his cellphone and claimed that she had “signed a half-million reais contract with the Fundação Padre Anchieta” to “criticize the President of the Republic” (at that time, Jair Bolsonaro) and that she was “a disgrace to Brazilian journalism”. A heated discussion ensued between Magalhães and Santos, which was broken up by security. During the situation, another journalist intervened on Magalhães’s behalf, grabbing and throwing Santos’s cellphone. Santos left the scene repeatedly shouting that Magalhães was a disgrace to journalism.

Moments before the electoral debate had began, Santos had made a provocative post on his (then) Twitter account, saying, “I’m already here at the TV Cultura debate waiting for Tarcísio’s [the candidate who Santos supported] arrival. Will Vera Magalhães come today?”. Santos had made similar posts over the past two years, questioning the source of Magalhães’s salary and her professional conduct.

After the incident, journalists and other Brazilian authorities condemned what they considered an attack by Santos on the journalist. Even Tarcísio de Freitas expressed regret over the situation and strongly condemned “the aggression suffered by journalist Vera Magalhães while she was performing her duties during today’s debate”, adding that “[t]his is an attitude incompatible with democracy and does not align with our stance on the work of the press”.

Magalhães filed a lawsuit seeking the immediate removal of publications containing offensive content to her honor, a prohibition against Santos from disseminating false and dishonorable information, and a retraction from Santos. Magalhães argued that she had been subjected to unfair attacks and false news from Santos since 2020, especially through posts on Twitter, culminating in the nationally-publicized episode at the debate.

Decision Overview

On October 6, 2022, Judge Cinara Palhares of the 15th Civil Court of São Paulo issued a preliminary ruling. The central issue before the Court was whether Santos had the right to speak and publish false information about the journalist and whether his freedom of expression could be limited by the right to honor.

The Court referred to Articles 5, IV (freedom of thought), 5, IX (freedom of communication without censorship), 220 (press freedom), and 5, X (protection of honor and personal image) of the Brazilian Constitution, and found that free speech and the protection of honor and personal image are fundamental rights that must be weighed in each case. It noted that although public figures like journalist Vera Magalhães are subject to criticism, “such criticism cannot constitute a direct offense to their honor, nor can the dissemination of false information be tolerated, especially with the intent of discrediting the plaintiff’s statements to the extent of limiting her role as a journalist”. [p. 114] The Court found that, in addition to the journalist’s honor, Santos’s actions also violated press freedom in Article 220 of the Constitution which states “The manifestation of thought, creation, expression, and information, in any form, process, or medium, shall not be subject to any restriction, as provided in this Constitution”. [p. 114]

Accordingly, given the evidence that Santos had falsely accused the journalist of receiving money specifically to criticize or spread false news about one of the presidential candidates, with the intent of discrediting her, the Court ordered Santos to immediately remove any publications referencing the alleged payments received by Magalhães from TV Cultura or the Fundação Padre Anchieta. [p. 115] The Court also prohibited Santos from making any further publications of this nature, but denied the request for retraction, considering it an irreversible measure, incompatible with a preliminary decision. [p. 115]

The case is ongoing, and Santos has not yet presented his version.