Case Summary and Outcome

The São Paulo Court of Justice held that a businessman was not entitled to an automatic right of reply in response to a magazine’s report linking him to “virtual militancy” in defence of the President. After the magazine had published the report, the businessman wrote to it, stating that his honor had been offended by the report and he requested a right of reply. He further argued that he should have been consulted before the report’s publication. The lower court found in the businessman’s favor, but, on appeal, the Court held that there had been no injury to the businessman’s honor and that allowing individuals to veto the publication of articles in which they were mentioned would inhibit investigative journalism and threaten the right to freedom of expression.

Facts

In October 2019, the Brazilian magazine Crusoé published an investigative report called “Badge bloggers”. The article identified the entrepreneur Otávio Fakhoury, as an administrator, investor and participant in various WhatsApp groups which have acted as a “virtual militancy” in defense of the government of President Jair Messias Bolsonaro. The report explained that these groups held events, conducted virtual attacks on those they understood to be opponents of and a threat to the government of President Bolsonaro, and published texts on the internet, positioning themselves as an alternative to the information and news published by large media.

Fakhoury wrote to the magazine, stating that the report was inaccurate as it had contained excerpts from the WhatsApp groups’ conversations about this “virtual militancy” which were out of context. He said that this would distort the readers’ views of him and his participation in politics and so offend his honor, and asked the magazine to publish his letter as a right of reply. Article 5(v) of the Brazilian Constitution protects the right of reply, stating that “the right of reply is assured, in proportion to the offense, as well as compensation for pecuniary or moral damages or damages to reputation”. In addition, Law No. 13.188 regulates this right in the Constitution and guarantees the right of reply in cases where the published content “attest, even if for information misunderstanding, against honor, intimacy, reputation, concept, name, brand or the image of an identified or liable person or legal entity”.

The magazine replied to Fakhoury, rejecting his request to publish his letter and explained that the magazine’s editorial board had found that the investigative report did not offend his honor and did not fall into the category of publication which provided for a right of reply.

Fakhoury brought an application before the São Paulo Court of Justice, seeking an order that he be granted the right of reply, on the grounds that the report offended his honor, intimacy and reputation.

Judge Tonia Yuka Korôku granted Fakhoury the right of reply. This decision is not publicly available.

The magazine appealed Judge Korôku’s decision.

Decision Overview

Appellate Judge Maria de Lourdes Lopez Gil delivered the judgment on appeal. The central issue before the Court was whether there had been a offence to Fakhoury’s character and so whether he was entitled to the right of reply.

Fakhoury argued that the excerpts from the WhatsApp conversations could only have been obtained, clandestinely, from an infiltrator into the WhatAapp groups in which Fakhoury participated or administered. In addition to seeking an order that he was entitled to the right of reply, Fakhoury submitted that the magazine should have requested prior authorization from Fakhoury (as well as everyone else in the WhatsApp groups and cited in the report) before publishing the report.

The Court held that Fakhoury’s request for prior authorization implied censorship, and that if magazines requested this prior authorization from people cited in a report, those people would also refuse to be mentioned if they did not approve of the content. The Court noted that this would inhibit investigative journalism and infringe the right to freedom of expression.

The Court found that the language of the report was informative and that the report sought only to provide facts, and held that there was no damage to Fakhoury’s honor, intimacy or reputation.

Accordingly, the Court held that Fakhoury was not entitled to a right of reply on the grounds that doing so would undermine the right of freedom of expression, the press and access to information. It also held that he had litigated in in bad faith as he had attempted to mislead the judge in the court of first instance when he stated that the article that allegedly attacked his honor was 46 pages long. The Court referred to another case brought by Fakhoury, case number 1012131-93.2019.8.26.0011, in which he had sued the journalist who had written the report, seeking compensation for moral damages: that application had been dismissed as “unfounded due to the absence of requirements for the application of the moral damage institute” [p. 8].