Content Regulation / Censorship, Privacy, Data Protection and Retention
Dagenais v. Canadian Broadcasting Corp.
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Supreme Court Judge Rosa Weber halted several dozen privacy cases that had been brought against a newspaper and its journalists by judges who claimed that their right to privacy had been violated. The cases were brought following newspaper reports that published and criticized the judges’ salaries. In a coordinated action, the judges had launched their claims in far-flung corners of the State requiring the journalists to travel thousands of miles, imposing a heavy financial burden on the defense and making it hard for the journalists to continue their day-to-day reporting.
The newspaper, Gazeta do Povo, had published a series of news articles disclosing the salaries of judges and prosecutors in the state of Paraná, criticizing them for receiving payrises over the constitutionally set limit of 28%. The reports included judges’ names, positions and their courts as well as how much each of them earned.
The report prompted a strong reaction and several judges filed lawsuits against the newspaper alleging invasion of privacy and seeking compensation. The suits were filed under legislation (Federal Act 9.099/95) which allows claimants to file cases in their own jurisdiction and requires that all parties are present at at least two hearings. Accordingly, the judges filed multiple and identical lawsuits in various jurisdictions inside the State of Paraná, which is very large. This included locations hours away from the state capital, where the newspaper is headquartered, resulting in representatives for Gazeta do Povo having to undertake extensive travel to take part in the scheduled hearings lest they be convicted without presenting a defense. Defending the cases required not only lawyers but also journalists to turn up, taking them out of the news room and making it hard for them to continue to do their day-to-day work.
Arguing that this strategy of multiple identical lawsuits in farflung locations had been pursued with the sole aim of retaliating against the newspaper, lawyers for Gazeta do Povo filed a constitutional complaint with the Supreme Court claiming violations of the right to freedom of expression and information. Gazeta do Povo argued that the multiple lawsuits had the effect of deterring investigative news reporting and harming the free flow of information that is essential to any democratic society.
In an initial procedural step, Supreme Court Justice Rosa Weber suspended all pending lawsuits against Gazeta do Povo pending a final decision by the Supreme Court’s plenary panel.
Justice Rosa Weber considered that Gazeta do Provo’s claim that the cases were purely retaliatory and that the strategy of multiple suits had been conceived purely to inconvenience the journalists was plausible. Applying Brazilian Supreme Court precedent, Justice Rosa Weber reaffirmed that the essential core of the right to freedom of expression protects the right of the public to be informed and receive information as well as the right of the media to disseminate information. This includes the right to express opinions and criticize, including through expressing pejorative opinions in the media. Any attempt to silence this harms the right to freedom of the press.
Justice Weber went on to state that Brazil’s constitutional democratic order does not permit excessive burdens to be placed on individuals or publishers who criticize the functioning of public officials; risks placed on individuals or corporate entities who have exercised their right to freedom of expression should not be such as to silence them through fear or intimidation.
Considering that dozens of cases were already pending and taking into account evidence that another 200 would be filed shortly, Justice Weber held that this constituted a violation of the right to freedom of expression and suspended all pending and new cases.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
‘Judicial censorship’ is one of the main risks to the right to freedom of expression in Brazil. In this case, local judges acted strategically to intimidate the newspaper and its journalists, using a scheme that required Gazeta do Povo to spend large sums of money paying for travel and which took journalists out of the newsroom. This would inevitably have a chilling effect on the right to freedom of expression, particularly as regards reporting on the judiciary in the State of Paraná. This decision by Justice Weber takes a stance against this tactic.
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.
The decision sets an authoritative precedent and protects journalists and media outlets from the chilling effect that would have resulted had the individual lawsuits been allowed to go ahead.
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