Case Summary and Outcome

The Supreme Federal Court of Brazil acted to prevent Strategic Lawsuits against Public Participation (SLAPPs) and held that the freedom of the press encompasses the right to criticize public authorities. In response to critical reports by a Brazilian newspaper on the salaries of judges and prosecutors in Paraná, judges initiated multiple identical compensation lawsuits against the newspaper and five journalists in various lower courts. The Supreme Court ruled that these actions constituted an abuse of rights, emphasizing the need to protect journalistic freedom and prevent legal tactics that could impede public discourse. In recognizing the SLAPP aspects of the case, the Court observed, “[t]he present case exposes an illegitimate stratagem by which political agents, taking advantage of the legitimate right of access to justice through legal action, distorted the judicial process, using it as an illegitimate instrument of intimidation directed at journalists and a media outlet that disseminated information of undeniable public interest”.

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Facts

On February 15, 2016, the Gazeta do Povo newspaper in the Brazilian state of Paraná, published an article titled “TJ and MP pay super salaries exceeding the legal limit by 20%.” The article, based on public data, disclosed that in 2015, judges and prosecutors in Paraná earned 23 to 28% more than the constitutional cap allows (in Brazil, the Constitution, specifically in Article 37, XI, sets a maximum salary for public officials). The newspaper also published an opinion piece providing context to the discussion, along with a cartoon illustrating the essence of the criticism. [p. 14]

Following these publications, the Judges Association of Paraná and the Paraná Association of Public Prosecutors (AMAPAR and APMP, respectively) requested a right of reply, which was granted by the Gazeta do Povo newspaper on February 24, 2016. The newspaper published in full the text provided by the associations which aimed to explain the receipt of amounts above the constitutional limit. Additionally, the Gazeta do Povo published another text, in addition to an editorial, clarifying that its intention was not to discredit judges or prosecutors but to discuss a matter of public interest. [p. 15]

Despite the granted right of reply, a voice message from the President of the Judges’ Association was published on a blog urging judges and prosecutors to file identical individual lawsuits across the state. The blog’s publication was titled: “Actions as a reaction. If all the judges in Paraná file individual lawsuits against ‘Gazetona’ due to the reports on salaries, as suggested by the president of Amapar, Frederico Mendes Junior, things will get tough for the GRPCom newspaper. After all, who is going to judge them?”.

Afterward, over 40 compensation lawsuits were filed in various lower courts throughout the State of Paraná. The combined damages sought exceeded 1,300,000.00 Brazilian reais, equivalent to around 235,000.00 US dollars at the time. [p. 17]

Because there was a direct and indirect interest of all judges in the State of Paraná in the resolution of compensation lawsuits, which were being used as mechanisms to suppress freedom of expression, the newspaper and the five journalists argued that the actions taken by the public authorities violated precedents set by the Supreme Court (ADPF No. 130 and ADI No. 4.451) and encroached upon its jurisdiction. [p. 17] According to the complainants, there was “an abuse of the right to legal action against the media as a way to reject a published journalistic content that supposedly offends the interests of the class.” [p. 17]

They argued that the identical individual lawsuits filed throughout the state harmed the right to defense since the hearings were scheduled for close or coincident dates. They also highlighted the risk of a proliferation of compensation lawsuits, emphasizing that they could not carry out their journalistic work as they were forced to focus on attending hearings: “Faced with dozens of increasing lawsuits every day, these professionals, instead of having a journalistic agenda, have shifted to responding to a schedule of hearings scattered throughout the State of Paraná.” [pp. 17-18] They asserted that there had been an abusive exercise of the right to claim compensation and a disregard for freedom of the press. They further argued that the lawsuits were manifestly unfounded, as the Brazilian Supreme Court has already ruled, in ARE 652.777-SP (Topic 483), and that “the publication, even on an electronic platform maintained by the Public Administration, of the names of its servants and the amount of their corresponding remuneration and pecuniary advantages” is legitimate. [pp. 18-19]

On June 30, 2016, the Supreme Federal Court, per Justice Rosa Weber, in a preliminary decision, suspended all compensation lawsuits in the State of Paraná filed by judges in response to the article, given a lower court’s condemnatory decision obligating the newspaper and journalists to pay compensation for alleged damages resulting from the journalistic piece. She also highlighted the potential for the multiplication of lawsuits and the increasing risk of damage to the defense rights of the newspaper and journalists. Additionally, she referred to the precedent of ADPF 130, a case in which the Supreme Court declared a pre-constitutional law aiming to regulate “the freedom of expression of thought and information” as unconstitutional.

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Decision Overview

In the final judgment, Justice Rosa Weber delivered the Supreme Federal Court’s majority decision. Justices Alexandre de Moraes and Nunes Marques delivered a dissenting opinion.

The central issue for the Court was whether judges filing multiple identical compensation lawsuits in courts across the State of Paraná, against the newspaper and journalists for publications about their salaries, amounted to censorship of the press or not.

The applicable law is Article 220 of the Brazilian Federal Constitution, and relevant precedents from the Supreme Court, such as ADPF 130, which invalidated a pre-constitution law that aimed to regulate freedom of expression and information. The decision also emphasized the principles of substantive due process and access to justice and acted to prevent Strategic Lawsuits against Public Participation (SLAPPs).

In the majority decision, Justice Weber highlighted Article 220 of the Federal Constitution, which protects freedom of expression, and states that “[n]o law shall contain any provision that may constitute an impediment to full freedom of the press, in any medium of social communication.” [pp.29-30] She said Article 220 “reverberates one of the cornerstones of democratic regimes, whose indispensability international political experience has consigned.” [p. 30]

Citing scholars such as Anthony Lewis and Owen Fiss, Justice Weber emphasized that in the Democratic Rule of Law, freedom of expression is a rule, and its restriction can only be accepted in exceptional situations provided by law. Accordingly, she stated that the Court’s position “leans toward the understanding that any imposition of restrictions on the freedoms of thought, expression, information, and the press that constitutes a form of censorship, even veiled, is substantively incompatible with the Democratic Rule of Law.” [p. 31] She also addressed the role of the press, which is not limited to disseminating information but also involves expressing opinions and criticism: “Confining the activity of the press to mere information disclosure is akin to a true capitis diminutio [diminished capacity] concerning the social role expected of it in a democratic and free society – a role that the Constitution recognizes and protects.” [p. 31]

Justice Weber noted out that it is inadmissible for the Judiciary or any other branch of government to “determine the editorial line to be followed by a press outlet” as it violates Article 220 of the Constitution and annihilates the protection of freedom of the press. As she emphasized, “Freedom of the press and compulsory objectivity are mutually exclusive concepts. Free press, by definition, has no commitment to a supposed neutrality because, on the day it eventually assumes it, it will no longer be free.” [p. 33]

Weber added that ensuring free opinion on the exercise of a function of public interest, including regarding the salaries received by public officials, is a matter of social interest. Citing the Inter-American Legal Framework regarding the Right to Freedom of Expression, Justice Weber stated that among others, “especially protected speeches” include: “(i) political speech and speech involving matters of public interest; (ii) speech regarding public officials in the exercise of their duties and candidates for public office; and (iii) speech that expresses essential elements of personal identity or dignity.” [p. 33]

With reference to the judgment of Rcl 16.434, Justice Weber described it as “inevitable – and even desirable from the standpoint of transparency – that public officials have the soundness of their activities scrutinized both by the press and by citizens, who can freely exercise the rights of information, opinion, and criticism.” She added that “[i]t is a sign of the health of democracy – and not the opposite – that public and private actors, whenever the public interest is present, are subject to criticisms of this nature.” [p. 33]

Stating that the free circulation of thoughts accepts intemperate, unreflective, and even mistaken statements, Justice Weber cited Justice Brennan’s opinion in the case New York Times Co. v. Sullivan to reinforce that the debate on public issues should be as broad and open as possible. According to Justice Brennan, as quoted by Weber, “it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on the government and public officials.” [p. 34] Otherwise, restricting public debate may discourage the expression of thought and imagination, in contradiction with Article 220 of the Constitution.

She also cited the European Court of Human Rights case Lingens v. Austria which “deemed incompatible with the freedoms of expression and of the press guaranteed by the European Convention on Human Rights the imposition of sanctions by the defendant State – Austria – based on domestic legislation for ‘reputation protection,’ for the use of expressions such as ‘base opportunist,’ ‘immoral,’ and ‘unworthy,’ which, although potentially damaging to someone’s reputation in principle, were directed at a public official”. [p. 35]

Justice Weber found that although the Federal Constitution also protects personal rights such as honor and image, when these rights conflict with the public interest, the free expression of thought has a privileged position concerning requests for the protection of individual interests.

Justice Weber asserted that subjecting the press to compensation for every mistake, especially in matters of public interest without the existence of concrete and effective harm, would lead to unacceptable censorship. Emphasizing the inherent imperfection of the press as a human product, she stated: “Being a human product, naturally imperfect, the press will be subject to censorship if, in matters of public interest, it is liable to pay compensation for every error that does not cause concrete and effective harm, especially when deliberate bad faith is absent, and the prior knowledge of the untruthful nature of the statements at the time of their expression is not demonstrated, as the alleged offenses appear to be purely subjective.” [pp. 39-40] She also referenced precedents from the Court, particularly ARE No. 652.777-SP, Topic 483, affirming that the disclosure of salaries of public officials does not constitute a violation of privacy or private life, as the information is of public interest.

In the present case, Justice Weber concluded that there was a coordinated effort to file numerous identical compensation actions against the journalists and the newspaper, which had published a legitimate news story about the salaries of public authorities. She reiterated that “the role of the press is not limited to a merely informative and impartial aspect” and that “the right to criticize is part of the regular exercise of the right to information.” [pp. 42-46] She also emphasized that the newspaper granted the right to reply to public officials and published their version, and all of this led her to conclude that there is no right to compensation. She highlighted that scheduling hearings in various cities in the State of Paraná, with close if not simultaneous dates and times, suggests a deliberate action to prejudice the defense rights of the newspaper and journalists.

Justice Weber noted that “[t]he strategic use of the right to petition instills in the complainants a well-founded fear of further mass compensation actions if journalistic content criticizing values not subject to the constitutional ceiling received by a public official is disseminated.” [p. 54] She added that the right to legal action is linked to ethical duties related to ensuring access to justice and that this right cannot be used “as a stratagem to mask devices aimed at coercing the press to refrain from publishing certain opinions, as occurred in this case, characterizing an abuse of right.” [p. 58]

Subsequently, she referred to the case California Motor Transport Co. v. Trucking Unlimited (1972), asserting that the repetitive pattern of unfounded lawsuits with the aim of creating deceptive devices constitutes a probable ruse. Additionally, she referenced the judgment of Resp 1.817.845 from the Superior Court of Justice, which states that there is an abuse of the right to legal action “in reckless lawsuits or incidents [that] bring frivolous claims or defenses, capable of turning the process into a simulacrum of justice under the noble shelter of the fundamental right of access to justice.” [p. 59] Still citing this judgment, she clarified that the “abuse is configured not by what is revealed, but by what is hidden.” [p. 59]

Justice Rosa Weber concluded that, in the present case, there was an abuse of the right to legal action by public officials against the five journalists and the newspaper. She asserted that this tactic was employed to intimidate the press, stating that “the filing of dozens of standardized actions against the complainants, in a short period, with the same argumentative repertoire – identical reasoning, jurisprudence, claim – to retaliate or impose a veiled gag on the publication of news about the receipt of benefits by public officials above the constitutional limit, subverts the ethical principles inherent in the legal proceeding and denotes, in essence, an abuse of the fundamental right of access to justice, in violation of the principles of access to justice and substantive due process (Art. 5, XXXV and LIV, of the Constitution).” [p. 60] She added that “the abuse of the right to legal action with the purpose of obtaining collateral advantage – the ‘chilling effect’ on the press – cannot be endorsed by the Judiciary.” [p. 60]

In summary, Justice Rosa Weber, in safeguarding freedom of expression and press, rejected restrictions on the press and ordered the dismissal of all compensation lawsuits by public officials, thereby upholding access to justice and preserving democratic principles.

Justice Cármen Lúcia followed Justice Rosa Weber’s opinion and added that “[t]he present case exposes an illegitimate stratagem by which political agents, taking advantage of the legitimate right of access to justice through legal action, distorted the judicial process, using it as an illegitimate instrument of intimidation directed at journalists and a media outlet that disseminated information of undeniable public interest.” [p. 95] She also stated that “[t]he respectability and honorability of state agents must not be preserved in the shadows, in the obscure shadow imposed on matters of public interest, nor by authoritarianism, as if public authority were the individual and not the public function exercised by it. The construction that seeks to confer upon public agents the status of supra-citizens, as if they were endowed with a statute that immunizes their acts from knowledge, criticism, or publicity for all, goes against the republican principle.” [p. 96]

Except for Justices Alexandre de Moraes and Nunes Marques, the other Justices agreed with these opinions.

Justice Alexandre de Moraes rejected the requests of the journalists and the newspaper on procedural grounds. He understood that the complainants did not indicate which act violated a binding precedent or usurped the competence of the Supreme Court. He also stated that, up to the filing of this complaint, there was no decision from lower courts condemning the journalists and the newspaper. Accordingly, for these formal/procedural reasons, he denied the requests. Justice Nunes Marques followed his opinion.

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