Case Summary and Outcome

Justice Marco Aurélio Mello, from the Brazilian Supreme Court, found that opinions from a former Minister of Communications during the exercise of his legal duty do not open the door for an honor tort due to the legal immunity of a public official, especially when the opinion, even supposing that someone has committed a crime, is held to justify a politician’s conduct in light of certain accusations.

Facts

On 23 November 1998, the magazine Época released a telephonic conversation between the Minister of Communications, Luiz Carlos Mendonça de Barros, and the President of the Brazilian Bank for Social and Economic Development (“BNDES”). The conversation revealed that Mr. Mendonça de Barros preferred one pool of companies to succeed in a bid of privatization of Brazilian the public telephonic system. The case was known as “BNDES wiretapping.”

Mr. Mendonça de Barros declared that, in his opinion, Carlos Francisco Ribeiro Jereissati – the chairman of one of the companies competing in the bid for privatization – was responsible for disclosing this information as a way of intimidation to make Jereissati’s company victorious in the bid. Such disclosure, according to Mr. Mendonça de Barros, was illegal because there was no judicial decision permitting the wiretapping of his phone calls.

Due to the accusation, on 11 February 1999, Mr.  Jereissati filed a lawsuit against Mr. Mendonça de Barros claiming indemnity of BRL 15,000,000.00 based on an alleged harassment of his honor. After being defeated in the first instance and in the State Court of São Paulo, the Brazilian Superior Court of Justice granted the appeal.

Against this decision Mr. Mendonça de Barros filed an appeal with the Supreme Court.

Decision Overview

J. Marco Aurélio Mello delivered his opinion to the Court granting Mr. Mendonça de Barros’ appeal.

J. Marco Aurélio Mello understood that a public official must entitle special protection over his or her speech – including when such an agent criticizes the public administration – based mainly in two assumptions: First, public officials have the duty to inform the population of any subject of public interest (in this sense, a duty of expression, instead of a right to inform). Second, assuming that the level of protection of a public official’s privacy is lower than one who does not occupy any public function, the right of expression of any aspect regarding the public function is larger even in front of the same right entitled by ordinary people.

The main issue before the Court was whether a public official – in this case, a Minister – could defend himself against accusations of misconduct when dealing with public issues, even when accusing someone of a crime.

Mr. Jereissati alleged that the constitutional protection of his honor (Art. 5^th, X, Brazilian Federal Constitution, “BFC”) weighed in his favor, and was increased by his fame as an entrepreneur and a businessman. Mr. Mendonça de Barros’ defense was stated mainly in his freedom of expression (“FoE”) and his alleged immunity from declarations made when exercising a public function, based on Articles 5^th, IV, V, IX, X and LIV; 37, 87 and 220 of BFC.

After declaring that FoE occupies the highest constitutional position, prevailing even over other constitutional rights, J. Marco Aurélio Mello accepted Mr. Mendonça de Barros points, adding that his declarations appointing Mr. Jereisatti as responsible for the leak were made without certainty, in the heat of the moment, and when Mr. Mendonça de Barros was under pressure. Moreover, the statements referenced were restricted to facts that occurred when Mr. Mendonça de Barros was Minister of Communications. Thus, Mr. Mendonça de Barros’ declarations were protected by immunity.