Case Summary and Outcome

A Brazilian court sentenced Jair Bolsonaro, the former President of the Republic, to pay compensation for moral damages to a journalist for a statement that violated her honor and dignity. In an interview with supporters, while commenting on the Parliamentary Inquiry Commission on Fake News (CPI), Bolsonaro suggested that the journalist had offered sex to a source for negative information about him. The Court found that the journalist’s personality rights were compromised as Bolsonaro referred to the term “scoop” in a clearly malicious manner, holding that Bolsonaro’s statement was not protected by the right to freedom of expression. As a result, Bolsonaro was ordered to pay compensation of 35,000 Brazilian reais (approximately 6,300 US dollars). Bolsonaro has appealed the decision.

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Facts

On February 18, 2020, Jair Bolsonaro, then President of Brazil, made sexual insinuations against journalist Patrícia Campos Mello while commenting on the testimony of Hans River, a former employee of Yacows (a mass messaging agency via WhatsApp) during the Fake News Congressional Inquiry (CPI). In his testimony, River claimed that Campos Mello allegedly made sexual insinuations towards him to gather information for the report exposing the illegal use of WhatsApp messages during the 2018 presidential campaign. This claim was denied by Patrícia Campos Mello and the Folha de São Paulo newspaper, and criticized by various political parties and journalistic entities, who deemed the statement as sexist and an assault on democracy.

Despite Campos Mello’s denial, when commenting on this testimony in an interview with supporters, Bolsonaro made a double entendre, stating with laughter that “[s]he [Campos Mello] wanted a scoop. She wanted to get a scoop at any cost against me.” Bolsonaro used a dual meaning by associating the term “scoop” with a vulgar expression in Portuguese, implying that the journalist wanted to “give the scoop” in a manner suggesting a sexual connotation. This derogatory insinuation implied that she was willing to go beyond journalistic pursuits. The play on words, insinuating a sexual act, was used in an offensive manner towards the journalist.

Bolsonaro’s full statement was: “the journalist from Folha de São Paulo, she has more than one video of hers there. I won’t say here because there are ladies nearby. She said, ‘I am the so-and-so of the PT, right?’ And the testimony of River, River, right? Hans River, at the end of 2018 to the Public Prosecutor’s Office, he talks about the journalist’s harassment towards him. She wanted; she wanted a scoop. She wanted to get the scoop [laughter] at any cost against me.”

This interview, published on social media, triggered a wave of threats, mentions of sexual assault, and sexually explicit memes against the journalist.

Campos Mello filed a lawsuit for moral damages against Bolsonaro. She argued that with these comments, Bolsonaro damaged her honor. As a journalist dedicated to political coverage, particularly the use of social media in presidential elections, Campos Mello emphasized that despite the false nature of River’s assertions, which were debunked by her and the newspaper she works for (Folha de São Paulo), Bolsonaro made a public pronouncement with sexual insinuations, intending to harm her reputation. She added that the interview was published on Bolsonaro’s Facebook page and gained traction.

Bolsonaro argued that he did not accuse the journalist but merely commented on River’s testimony. Additionally, he stated that he expressed his opinion, and that Campos Mello did not provide evidence regarding the falsity of River’s statements. He submitted that the term “scoop” was used in the purely journalistic context and that there was no intention to offend Campos Mello, and was an exercise of the right to free expression. Bolsonaro submitted that the insults did not originate from him but from comments made on social media.

On March 16, 2021, Judge Inah de Lemos e Silva Machado delivered the first-instance decision in the 19th Civil Court of São Paulo.

The Judge held that Bolsonaro did not limit himself to reproducing River’s testimony, who had not even used the word “scoop”. Judge Silva Machado stated that “[t]he word ‘scoop’ was used in different senses, initially […] as news, […] but the word ‘scoop’ was used again, and this is the one challenged by [Campos Mello], as it would have an offensive connotation. Correctly, [Campos Mello] argued that there was a play on words due to the ambiguity in meaning; the audience present at the event laughed, and initially, [Bolsonaro] claimed he wouldn’t speak further as there were ladies present.” [pp. 220-221]

Stressing that freedom of expression or thought is not unlimited, the Judge found that Bolsonaro’s statement affected Campos Mello’s honor, especially considering the parties involved were a well-known journalist and the President of the Republic. She noted that “the statements reverberate throughout the country and also abroad, with the presence of journalists from various media outlets at the location.” [p. 221]

Accordingly, Bolsonaro was sentenced to pay compensation of 20,000 Brazilian reais (approximately 3,700 US dollars in 2024).

Both Bolsonaro and Campos Mello appealed to the São Paulo Court of Justice.

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Decision Overview

The 8th Private Law Chamber of the São Paulo Court of Justice delivered the decision. Judge Clara Maria Araújo Xavier provided the prevailing opinion, which was followed by the majority, while Judge Salles Rossi delivered the dissenting opinion.

The central issue for the Court was whether Bolsonaro’s statement did or did not violate the honor of Campos Mello.

The Court examined Article 5, X, of the Brazilian Constitution and Articles 186 and 927 of the Civil Code, which respectively protect honor and dignity and establish the scenarios for civil liability.

The Court found that Bolsonaro could not deny the statements attributed to him by Campos Mello since the interview was published on his social media. In agreement with the lower court, it highlighted that “the term ‘scoop’ was not used by Hans River during his testimony before the CPI, not even as commonly used journalistic jargon to refer to news given firsthand.” [p. 386] Accordingly, the Court found that Bolsonaro’s statement was not – as he had argued – a mere reproduction of Hans River’s words.

In finding that communication is not solely conveyed through words but also by context, intonation, rhythm, and body language, the Court added that the video with the interview indicates “the clear intention of [Bolsonaro] to offend the honor of [Campos Mello], embarrassing her through a shallow sexual pun, in an evident play on words.” [p. 386] It highlighted that the malicious intent of Bolsonaro’s statement was obvious, considering his ironic and mocking tone, as well as the laughter from the audience, making it “clearly evident the purpose of damaging the reputation of [Campos Mello].” [p. 387]

The Court noted that Bolsonaro published the interview on his Facebook page “with the clear purpose of giving more visibility to the case and to his thousands of followers, who felt legitimized and encouraged to revolt against the person of [Campos Mello]. She then became the target of numerous offensive comments, harassment, and virtual gross and repugnant attacks, questioning and mocking [her] credibility, as a woman and as a professional, due to her alleged sexual behavior.” [p. 388]

Referring to a similar case decided by the same Court (1053408-79.2020.8.26.0100), the Court stressed that “credibility is undoubtedly the most valuable asset in the practice of the journalist profession”, and when the offense is uttered by the President of the Republic, the moral impact is undeniable. [p. 388] With reference to ADPF 130, a Supreme Federal Court decision, the Court endorsed the decision of the lower court in emphasizing that the right to freedom of expression is not absolute and must be weighed against other conflicting constitutional rights.

In line with the first-instance decision, the Court concluded that there was a violation of Campos Mello’s personality rights, under Article 5, X, of the Federal Constitution and Articles 186 and 927 of the Civil Code. The Court increased the compensation amount to 35,000 Brazilian reais to align with the parameters of the similar case 1048998-75.2020.8.26.0100, as well as the principles of reasonableness and proportionality, in addition to the case’s repercussion, including international media attention, and the socioeconomic condition of the parties. The Court stated that the new sum better served reparative and punitive purposes.

In a concurring judgment, Judge Silverio da Silva added that Bolsonaro’s statement, in the presence of others, “had the effect of scorn and ridicule towards the journalist, in the exercise of her profession”, and that “[t]he unlawfulness arises from the exposure to ridicule, the undermining of the victim’s self-concept.” [p. 398]

In a concurring judgment, Judge Theodureto Camargo explained that, although the term “scoop” does not have a sexual connotation in the journalistic sense, “because it refers to the character of novelty in a piece of news, published firsthand”, Bolsonaro’s intention, in this case, was “to make a pun and offend the honor of [Campos Mello].” [p. 401] He added that “[t]he reference he made right at the beginning, moreover, that ‘there are ladies here on the side’, gives the tone that [Bolsonaro] wanted to convey” and that “[n]ext, with a mocking and ironic connotation, he stated, ‘[s]he wanted to GIVE the scoop.’” [p. 401] Accordingly, Judge Camargo found that Bolsonaro uttered the statement maliciously, with the purpose of embarrassing, belittling, or discrediting Campos Mello, which constituted moral damage. [pp. 401-402]

In a dissenting judgment, Judge Salles Rossi would not have considered Bolsonaro’s statement as an offense to Campos Mello as “[t]he issue as presented, [Campos Mello’s] argument as laid out, begins with the mistake that her right to compensation arises from the offense perpetrated by [Bolsonaro]. I do not see in the latter’s statement any word that could generate the offense of which the plaintiff in the action feels victimized.” [p. 393] Arguing that a free press is fundamental for the democratic rule of law, Rossi rejected Campos Mello’s argument that Bolsonaro had not individually attacked her but the entire press. Judge Rossi stated that “[t]he discussion that takes place today in a country where the electoral climate is so heated is a set of narratives. Much is said, much is discussed, but what is really wanted, on both sides, is to silence divergent voices.” [pp. 393-394] On Bolsonaro’s statement, Judge Rossi concluded that it was not possible to assess if there was indeed a sexual connotation, “because no other observation can be extracted from his words than the one that translates the journalist’s pursuit of the first news, and that was certainly what Bolsonaro] meant. Furthermore, that was exactly what he said and nothing more than that.” [p. 394] He reiterated that “[t]here is not, in my view, a single word, in the context of the statement given, that can mean ‘offensive, disrespectful, sexist, and lying speech…’ Neither the repercussion that the President of the Republic’s statement may bring allows us to say that it resulted in damage, harm, or repercussion to the moral life of [Campos Mello].” [p. 395] Stating that there was no offense but rather freedom of expression and the use of language or jargon typical of journalistic activity, Judge Rossi would have accepted Bolsonaro’s arguments and dismissed Campos Mello’s lawsuit.

Bolsonaro has filed an Extraordinary Appeal (which was suspended as the matter is being analyzed by the Federal Supreme Court under general repercussion,) and a Special Appeal (awaiting judgment by the Superior Court of Justice).

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