Case Summary and Outcome

J. Roberto Barroso, from S.T.F., suspended a  judicial order that prohibited the distribution and ordered the collection of magazines in circulation that featured an article accusing the Governor of Ceará of corruption.  J. Barroso used a casuistic analysis to find that FoI and FoE outweighed the Governor’s privacy. The Court considered the validity of the facts and Governor’s position as a public figure subject to public scrutiny in determining that censorship was inappropriate.

Facts

On September, 12, 2013, the Governor of the State of Ceará, Cid Ferreira Gomes, sued Três Editorial – owner of a traditional Brazilian magazine, IstoÉ – aiming to prevent the publishing or disclosing facts that linked him to Paulo Roberto Costa.  Paulo Roberto Costa, the former director of the Oil Company Petrobrás,  was the whistle blower in the criminal investigation into a huge corruptive scheme involving construction companies, politicians, and Petrobrás.

According to Mr. Gomes, the information published by IstoÉ was false, obtained illegally, and could result in the defamation of his personal and political character. The lower court granted an injunction against Três Editorial ordering the apprehension of all the magazines, the removal of all internet search results, and prohibited the disclosure of any information related to the scandal, imposing a daily fine of BRL 5,000,000.00 for failure to comply. Três Editorial was  notified on September 13, 2014, after the magazines had already been distributed.

Três Editorial filed an appeal (“Reclamação”) with S.T.F. alleging that the lower court’s decision resulted in an improper censorship over the entire magazine. Alleging that the decision created an unfounded and untimely restraint on the press and superseded the authority granted to the S.T.F. by ADPF 130. ADPF 130 was a case that created a binding precedent in determining that 1960’s Press Act was unconstitutional. Três Editorial further alleged that the judicial authority censored the publication even without knowledge of  its content. Finally, Três Editorial alleged that all the facts in the article were related to the highly publicized Petrobrás scandal and were of great interest to the public.

The case was assigned to J. Roberto Barroso to decide the validity of the injunction against Três Editorial.

Decision Overview

On September 17, 2014, J. Roberto Barroso delivered his opinion to the Court granting Três Editorial’s appeal.

J. Roberto Barroso started his analysis by discussing the conflict amid rights of the individual (i.e., privacy, intimacy) and FoI/FoE. He recalled the time when FoE was greatly suppressed in Brazil and cited to examples in which the press, cinema, arts, music, and television were harmed by censorship. The historical analysis is utilized to explain the strict scrutiny test that is employed in cases where constitutionally protected FoE and FoI are censored.  FoE and FoI are protected in Articles 5, IX and 220, 2nd Paragraph, and the Constitution expressly forbids any kind of censorship or immature injunction, mainly if the article in question contains political, ideological or artistic intent.

J. Barroso continued by understanding that FoE, FoI and freedom of the press are necessary for the democratic process, which depends on a free marketplace of ideas. For that reason, spheres of FoE protect the public’s interest, FoE expands beyond news content and must be protected as preferential liberties.

J. Roberto Barroso elected eight criteria to be assessed whenever a conflict amid FoE and rights of the individual arise: 1) the validity of the facts; 2) legal procurement of the information; 3) the public or private status of the individual; 4) the location of the incident; 5) the nature of the facts; 6) the existence of public interest in disclosure; 7) public interest in facts that relate to the actions of public entities; 8) preference for post-sanctions that do not involve prior restraint. J.  Barroso stated that most of this criteria were presented in the decision issued in ADPF 130, and considered all of them were present in the case against Três Editorial.

J. Roberto Barroso concluded that the case did not contain any elements that could justify a preliminary injunction. Only in rare occasions, such as cases in which indemnity could not repair the suffered harm would such action be permissible. J. Roberto Barroso granted the appeal,  provisionary revoking the order, permitting the distribution of the magazine and the disclosure of the contested information.