Defamation / Reputation, Political Expression
Instytut Ekonomichnykh Reform, TOV v. Ukraine
REGISTER NOW: Join us on October 3 & 4 for the “Regulating the Online Public Sphere: From Decentralized Networks to Public Regulation” conference
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Brazilian Supreme Court held that any council member enjoys immunity for words spoken (i) within the parliamentarian jurisdiction; (ii) regarding facts related to the mandate; and (iii) during the mandate. So long as these conditions are fulfilled, even defamatory statements and personal insults are constitutionally protected; the Supreme Court emphasized that this is because the Constitution attaches overriding importance to the protection of debate in democratic institutions.
A local councilor, Sebastião Carlos Ribeiro das Neves, of the municipality of Tremembé, in the countryside of the State of São Paulo, was offended by a speech made by another councilor, José Benedito Couto Filho. Neves alleged that Couto Filho had described him as a supporter of corruption, burglary and of an impeached politician. Couto Filho’s speech followed a criminal complaint that had been brought by Neves against the Mayor of Tremembé (of the same political party as Couto Filho).
The first instance court dismissed Neves’s claim on the grounds that Couto Filho’s accusations enjoyed absolute immunity under Article 29, Section VIII of Brazil’s Federal Constitution, because he had spoken as a councilor. The Court of Appeals reversed the dismissal on the grounds that Couto Filho’s accusations were unrelated to his political mandate. Neves then appealed to the Supreme Court, arguing that Neves’s claim should be dismissed. Relying on his right to freedom of expression and on his constitutional immunity, he argued that once parliamentary immunity was limited in one case, others would follow and this would have a negative effect.
Justice Luís Roberto Barroso delivered the judgment of the Court, holding that speeches of council members are protected under the following conditions: (i) the speech must be made within the parliamentarian jurisdiction; (ii) the speech must regard facts related to the parliamentary mandate; and (iii) the speech must be relevant to facts during the mandate. So long as these conditions are met, even defamatory statements and personal insults are protected, since the Constitution attaches overriding importance to public debate in democratic institutions.
Justice Roberto Barroso held that despite the poor and awkward quality of Couto Filho’s words, they were covered by parliamentary immunity. He held that Couto’s speech was clearly linked to his parliamentarian mandate, since it was expressed inside the Municipal Council building and in his capacity as a councilor. The speech was made inside the Council’s jurisdiction. Justice Roberto Barroso affirmed that there was no difference between the constitutional immunity assured to deputies and senators, under Articles 27, Par. 1º and 53 of the Brazilian Constitution, and that guaranteed to councilors under Article 29, Section VIII of the Constitution, save for the different venues in which they speak. Furthermore, Justice Roberto Barroso held that Couto Filho’s speech had referred to the criminal complaint filed against the Major of Tremembé, and was evidently political in content. Finally, Justice Roberto Barroso warned that an interpretation to the contrary would have a chilling effect, inhibiting local councilors in their duties.
Agreeing with Justice Roberto Barroso, Justice Zavascki added that if the correlation between the speech expressed by any councilor inside the council’s enclosure and its pertinence to the political mandate is not presumed, then judges would have to examine all speeches. This would be illogical.
Justice Fux elaborated on comparative law and practice as regards parliamentary immunity. Referring to a leading case reported by former Justice Sepúlveda Pertence (RE 210.917, 1998), he observed that parliamentary immunity is recognised in the United States, England, France, Italy, Spain, Portugal and Argentina. He stated that abusive speech and abuse of parliamentary immunity should be discussed politically, inside the respective political body, and not be brought before judges.
Justice Celso de Mello highlighted that immunity is extended to interviews given by parliamentarians, broadcasts of their speeches and any declarations made on social media. He opined that even declarations expressed outside parliamentary enclosures should be protected when they are connected to the parliamentarian’s mandate.
The majority thus disagreed with Justice Marco Aurélio Mello, the judge rapporteur. In Justice Aurélio Mello’s opinion, Couto Filho should not enjoy immunity because his speech had not been connected to his political position. Justice Aurélio Mello had stated that constitutional immunity serves to protect the legislative independence of parliamentarians against pressure from other branches of the state, but it should not be used as a personal parliamentary benefit. Thus, he had held that there should be a clear connection between the impugned speech and a parliamentarian’s legislative activity.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision confirmed that council members enjoy immunity for words spoken in connection with their political mandate so long as they are connected to their political activity and the words are spoken (or otherwise expressed) inside the confines of the council. The Supreme Court thus followed the intent of the drafters of Brazil’s Constitution and ensures that no parliamentarian can be pressured into silence by fear of legal action. As speeches are at the core of any political activity, the Supreme Court held that their protection must be guarded and preserved.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Supreme Court judgments are binding in law in Brazil.
Let us know if you notice errors or if the case analysis needs revision.