Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The state of São Paulo’s Court of Appeals found that a news article, reporting investigations of a candidate for alderman, was protected by the freedom of information. This fundamental right cannot be obscured by any form of censorship. In this particular case, the Court held that this was especially true because there was nothing abusive or offensive in the article.
On April 7, 2000, the newspaper Folha de São Paulo published an article titled “Marshal is candidate for alderman”, reporting that Mr. Manoel Conde Neto, a marshal, was under investigation by the local Chief of Marshals. The police ombudsman service had previously named Mr. Neto as a suspect in dealing drugs and profiting illegally. At the time, Mr. Neto was a candidate for alderman of Ubatuba, a city located on the shore of the state of São Paulo. Mr. Neto declared, at the time of the report, he had been a victim of criminals who exploited his job as a marshal.
On May 12, 2014, Mr. Neves filed a libel lawsuit against Folha de São Paulo’s owner, requesting an injunction to order Folha de São Paulo to delete digital files of the report from the internet and indemnity. According to Mr. Neto, the report was abusive and presented false information. Additionally, Mr. Neto self-identifies as an entrepreneur and claims that the article harmed his professional reputation.
The Defendant responded to the claim by stating that all the information in the report was true, objective, inoffensive and non-accusatory towards Mr. Neto. The Defendant claimed protection under the freedom of the press for the published materials. The Defendant also defended the publication of the article in Folha de São Paulo’s digital archive since it had been published prior to any notice of a complaint and had not received a complaint in over a decade.
A local judge granted the preliminary injunction that ordered Folha de São Paulo to remove the report from the digital archive and issued a fine of BRL 1,000.00 for every day they failed to do so. In response to this injunction, the Defendant filed an appeal against the injunction with the State of São Paulo Court of Appeals.
The article can be found at: http://www1.folha.uol.com.br/fsp/vale/vl0704200002.htm
Deciding the appeal filed by Folha de São Paulo, J. Cascaldi delivered the opinion of the Court and was joined by the two other judges on the Court of Appeals.
J. Cascaldi noted that at the time of publication there was no evidence that the information in the article was false or abusive. On the contrary, Mr. Neto himself informed the public about the termination of the police investigation discussed by the newspaper. Thus, establishing the truth to the facts in the article.
The main issue before the Court was whether an article disclosing a police investigation of some alleged criminal and suspected civil conduct by a candidate caused substantial damage against the former candidate 14 years after publication. This case can be understood as discussing a right to be forgotten, notwithstanding in the decision was whether Mr. Neto had explored this argument.
The newspaper, Folha de São Paulo, cited in their favor two constitutional clauses. The first was the article that protects the freedom of expression (Article 5th, IV, Brazilian Federal Constitution “BFC”). The second protects the freedom of communication exercised without any form of censorship (Article 5th, IX, and 220 of BFC).
Mr. Neto stated his lawsuit that he considered the report to be abusive and was therefore entitled to indemnity and requested the withdrawal of all digital records. He was constitutionally protected by Article 5th, V of BFC (that protects the right of reply and for compensation caused by the damage of abusive materials). He also filed claims under articles 187 and 927 of Brazilian Civil Code (Civil Liability for Abuse Act).
The Court held that the information in the article was truthful, not abusive, had general interest and, thus, was protected by any form of censorship that the lawsuit requested. Furthermore, the Court held that the ends of the report were merely informational, without any derogatory intent by the publisher.
Moreover, the Court held in the absence of any secrecy over police investigation, there was no reason to prevent its disclosure. The Court applied article 5th, IV and IX in publisher’s favor. Additionally, since the report brought information of general interest, affirming the decision of the lower court would be dangerous and the Court has a duty to protect the fundamental right of information, free from censorship, entitled to citizens. This right becomes increasingly important in the election of public officials, like in the case of Mr. Neto.
Therefore, Court reversed the preliminary injunctive relief obtained by Mr. Neto and reinstated Folha de São Paulo’s right to publish the report in their digital archives.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court upheld the freedom of expression and freedom of information by protecting the newspaper Folha de São Paulo’s publication of an article about a controversy surrounding a political candidate. A report based in fact, in this case a police investigation; that is truthful, with no ill intent is not valid grounds for a lawsuit claiming indemnity or requesting an injunction for removal of content.
Indirectly, the Court held that a person that avails themselves publically, such as an alderman candidate, has no right to be forgotten when information serves to clarify relevant circumstances for the public.
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.
A political candidate, regardless of status of candidacy, cannot request the removal of content unless that content is false or the result of ill intent. The case is both persuasive and influential.
Let us know if you notice errors or if the case analysis needs revision.