Case Summary and Outcome

A Brazilian court ordered the removal of defamatory social media content and compensation to a political leader who had been accused of stabbing a presidential candidate. Despite clear evidence that the person who had stabbed the candidate had acted alone, the candidate’s sons had posted on Facebook and Twitter that the political leader had orchestrated the attack. The Court emphasized that the right to freedom of expression is not absolute and that there must be a balance between the right to research and disseminate information and the right of the community to receive information corresponding to reality. It found that as the posts caused harm to honor and were inaccurate they should be removed and the political leader compensated.

Facts

On April 27, 2020, Carlos and Eduardo Bolsonaro, the sons of the then-Brazilian president Jair Bolsonaro, used their social media accounts (Facebook and Twitter) to accuse Jean Wyllys, a former congressperson from the opposition Socialism and Liberty Party (PSOL) political party, of orchestrating the stabbing of their father. Both Carlos and Eduardo Bolsonaro were political figures: Carlos served as a municipal chamber councillor in Rio de Janeiro, and Eduardo Bolsonaro as a federal deputy in the state of São Paulo.

During the 2018 Brazilian general election campaign, Jair Bolsonaro, then a candidate, was stabbed. The attacker, Adélio Bispo, was identified, but suspicions arose about potential masterminds due to Bispo’s affiliation with the PSOL between 2007 and 2014 and his unexplained legal representation. Police investigations confirmed that Bispo acted alone and suffered from a mental disorder. Despite the investigative findings, speculation persisted about political involvement, leading to the continued spread of false content online.

In response to the accusations made by Carlos and Eduardo Bolsonaro, Wyllys filed a lawsuit seeking the removal of defamatory statements, arguing that he had been the victim of “fake news”.

In a preliminary ruling, Judge Diogo Barros Boechat concluded that the Bolsonaros’ attempt to link the petitioner to Adélio Bispo lacked any factual basis. He noted that Carlos and Eduardo Bolsonaro spread a version of events they believed to be convincing to the audience, making Wyllys a target of persecution, embarrassment, and offense, likely due to political-ideological differences. The judge emphasized that the case did not involve the right to inform or freedom of expression but the spread of fake news designed to tarnish Wyllys’s honor, violating the democratic Rule of Law. The Judge rejected the Bolsonaros’ argument of parliamentary immunity, stating it did not apply to words and opinions unlinked to parliamentary functions. Accordingly, he ordered Carlos and Eduardo Bolsonaro to remove the illicit content from their social media.

The final judgment of the First Instance Court reaffirmed the preliminary decision, highlighting the Bolsonaros’ social media posts’ potential harm to honor and safety. Judge Juarez Fernandes Cardoso referenced constitutional and international provisions on freedom of expression but emphasized that the right can be limited. The Court found that the social media posts “can reach an incalculable number of people”, go beyond mere opinion, and harm honor and even jeopardize Wyllys’s safety. [p. 1]

Quoting the Brazilian Federal Constitution (Art. 5, IV, IX, and Art. 220), the Court stressed that freedom of expression “has the purpose of protecting every communicable message, as well as every opinion, conviction, comment, assessment, or judgment on any subject, whether relevant or not in the eyes of public interest”. [p. 2] It also referenced Article 13 of the American Convention on Human Rights to demonstrate that freedom of expression enjoys broad legal protection, especially in the context of political disputes. The Court balanced this by stating that the right to expression is not absolute and has limitations compatible with the democratic regime. Referring to a ruling from the Superior Court of Justice (STJ in RESp 801.109/DF), the Court outlined certain limits, including a commitment to truthful information, the preservation of personality rights, and the prohibition of disseminating criticism with the intent to defame, injure, or slander the person. [p. 2]

Adopting the idea of “Responsible Freedom of Expression”, the Court invoked the Brazilian Civil Code (Arts. 186 and 927) to conclude that the Bolsonaros’ “overstepped their right by slandering the author, without any plausible basis, of having participated in the attempted homicide of the President of the Republic”. [p. 3]

The Court ordered that content be removed, 20,000 Brazilian reais compensation be paid, and that the Bolsonaros publish a retraction on their social media.

The Bolsonaros appealed to the 1st Recursal Chamber of the Special Civil Courts of Rio de Janeiro.

Decision Overview

Judge Alessandro Oliveira Felix of the 1st Recursal Chamber of the Special Civil Courts of Rio de Janeiro delivered the judgment. The central issue for the Court’s determination was whether the Bolsonaros’ posts were legitimate exercises of their freedom of expression.

Citing the Brazilian Federal Constitution, the Court emphasized the protection of freedom of expression at various points (Article 5, IV, V, IX, XII, and XIV, and Articles 220 to 224). It acknowledged three types of freedom: the expression of thoughts, general information, and journalistic information, and underscored a balance between the right to research and disseminate information and the right of the community to receive information corresponding to reality.

Emphasizing the right to image as a personality right protected by the Constitution, the Court highlighted that the image is considered inviolable, along with privacy, honor, and private life. In line with the decision of the lower court, the Court reiterated the absence of absolute rights in the Brazilian constitutional system and the lack of hierarchy among fundamental rights: “It’s worth mentioning that the apparent conflict between constitutional norms that protect the right to information and freedom of expression, and the right to the inviolability of honor and image, fundamental rights of equal hierarchical standing that are not absolute rights, must be resolved through a judgment of balancing”. [p. 743-744]

In the present case, the Court noted that “notoriety of the portrayed individual and the addressed facts, as well as their truthfulness, and also the characteristics of their use” should be considered, favoring measures that do not restrict the dissemination of information. [p. 744] As the information disseminated by Bolsonaro’s sons had no basis, as concluded by the police investigation, the Court determined that their comments went beyond the limits of legitimate exercise of freedom of expression. It emphasized that the abuse “harmed not only the honor and image of [Wyllys] but also the accuracy of the information, constituting an abuse of right, and the defendants must be held accountable for the misconduct”. [p. 744]

The Court stressed that parliamentary immunity is not absolute and only protects the Bolsonaros concerning the exercise of their functions, which was not the case in these circumstances.

Note: We did not have access to the initial petition and Carlos and Eduardo Bolsonaro’s defense and so were are only able to analyse the judgments.