Case Summary and Outcome

Brazilian Supreme Court preventively suspended a judicial decision authorizing telephone interception that could violate the constitutional clause assuring protection of sources (Article 5^th, XIV of Brazilian Federal Constitution – “BFC”) .

Facts

On May, 1 and 6, 2011, the newspaper Diário da Região (Region Daily) published two reports signed by the investigative reporter Allan de Abreu Aio (“Allan”) about a Federal Police operation started to investigate an alleged corruption scheme running on at the Federal Office of Labor Relationships of the city of São José do Rio Preto, in São Paulo State.

The news story contained information obtained by telephone interceptions judicially authorized and protected by a judicial decree of secrecy. For this reason, the Federal Prosecutors Office (“FPO”) claimed to a federal marshal the indictment of Allan in order to analyze possible occurrence of criminal conduct consisted in interception of telephone calls without judicial authorization. In the police investigation, Allan confirmed that he was the author of the two texts, but denied to reveal his sources. After had not found elements to characterize such criminal conduct, on February, 13, 2014 the federal marshal decided to extinguish the police investigation.

On July, 10, 2014 FPO decided to file a petition aiming a judicial decree to intercept calls of the telephone numbers registered in name of Allan and the Region Daily. The request was granted by a federal judge, who ordered telephone companies to provide such information.

Against this decision, the Region Daily filed a writ requesting to TRF3 to sustain its constitutional right assuring the confidentially of sources. The preliminary injunction was overruled by the Court based on procedural grounds and, immediately thereafter, National Newspapers Association (“ANJ”) joined the case representing both Allan and the Region Daily and filed a constitutional complaint with the Supreme Court, aiming a precautionary order to suspend the interceptive order, based on the same arguments deduced by the Region Daily and stating that the appealed decision was challenging a binding precedent held by Supreme Court in a revision of Brazilian Press Act of 1967 (ADPF 130/DF).

According to ANJ, the interceptive decision consisted in a disastrous emptiness of FoI and FoE and protection of sources, essential pillars of professional journalism and, thus, to democracy itself. Continuing, alleged that the decision on ADPF 130/DF established the impossibility to the state to impose any obstacle to the free exercise of journalism, including in what refers to protection of sources. Petitioner also cited many precedents in this sense, constitutional complaints 18.186-MC, 18.746-MC, 18.836-MC, 18.638-MC, 15.681-MC and 18.290-MC, among so many others. Finally, pointed out that another federal judge of the same jurisdiction denied an equal claim from FPO against a broadcaster that disclosed the same data obtained from the secret police investigation.

Decision Overview

On January, 8, 2015 J. Lewandowski delivered his singular opinion to the Court understanding that, although the issue was highly complex, prudence recommended, at first, the suspension of the order, and, further, the requisition of information to TRF3.

The main issue before the Court was whether a journalist, protected by the constitutional and fundamental right to keep his or her sources under secrecy, must reveal these sources’ identity in case that information disclosed were also under judicial secrecy. On one side, disclosing sources’ identity could commit the freedom of the press; on the other, could this protection survive in case the information are also protected by secrecy?

Article 5^th, XIV of Brazilian Federal Constitution (“BFC”) states the public right to information, protecting the source when necessary to safeguard professional secrecy. ANJ alleges in its favor, moreover, a binding precedent held by Supreme Court in the ADPF 130/DF, in which the Court declared unconstitutional many articles of Brazilian Press Act of 1967 and stated the general precedence of the free press over intimacy, privacy, personal image and honor. ANJ considers this clause as fundamental to guarantee the right to a free press. Nevertheless, article 93, IX of BFC permits that, exceptionally, processes can run under secrecy anytime when the safeguard of intimacy (article 5^th, X, BFC) is recommendable. The Court considered the clear tension amid this concrete antagonism and recognized that more information were necessary to assess such conflictive case, but as the situation claimed urgency, the Court decided precautionary to suspend the appealed order, avoiding, so far, the telephone interception of Allan and Daily Region calls.

The Supreme Court warned once more that the issue deserved deep discussion, based on an article from a professor in which she calls for paying attention to old and questionable practices in the obscure relationship amid the journalist and her or his source, hidden inside the constitutional clause. Recognizing this important issue, J. Lewandowski declared that in this moment, without any information from the appealed authority, it was so premature to grant an injunctive suspension purely. Afterwards, such measure was adopted just because of the urgency in the situation, to avoid the prompt interception of Allan and Region Daily telephone calls.