Case Summary and Outcome

The Supreme Federal Court of Brazil suspended a lower court’s order compelling a journalist to take down his website pending a final decision on the journalist’s constitutional claim that the order violated freedom of expression. The 2nd Civil Court of Campo Grande had granted the Association for Members of the Public Ministry MS (“ASMMP”) an injunction requiring journalist Nélio Raul Brandão to take down his website after he had failed to comply with orders to remove allegedly offensive material from a series of articles criticizing budgetary expenditures of the Public Ministry. Brandão had subsequently filed a constitutional claim with the STF stating that the material he posted on his site was based on official data and that news regarding the Public Ministry and how it used its budget was of public interest. The Court reasoned that the 2nd Civil Court of Campo Grande’s order to shut down the website was an unconstitutional use of judicial power as it unjustly suppressed freedom of the press. In reaching its decision the Court relied on precedent establishing that no kind of prior censorship or constraint on the exercise of the freedom of the press was permitted.

This case analysis was contributed to by Dissenso.org, a project developed by InternetLab. This case is ongoing in both the STF and the 2nd Civil Court of Campo Grande, the analysis will be updated when the cases proceed. 

Facts

Nélio Raul Brandão is an investigative journalist who runs Blog do Nélio. Brandão published a series of articles criticizing the Mato Grosso do Sul (“MS”) Public Ministry’s Office. The blog questioned state expenditures and use of the budget based on data published in the Official Gazette of the Public Prosecutor’s Office. The Association for Members of the Public Ministry MS (“ASMMP”) filed a defamation claim against Brandão requesting damages. The lawsuit included a request for an injunction requiring Brandão to remove the “offensive” content and to refrain from posting anything else about the MS Public Ministry (“Public Ministry”).

The 2nd Civil Court of Campo Grande presided over the matter. On December 16, 2016, the court granted the ASMMP’s request requiring that Brandão delete the allegedly offensive material and refrain from posting about the Public Ministry. For every day Brandão did not comply he was ordered to pay BR 1,000 per day for up to 30 days.  Shortly thereafter, ASMMP filed a new request for updated relief when Blog do Nélio allegedly posted new content related to the Public Ministry. This request, which was granted on March 15, 2017, ordered the removal of content, temporarily suspended access to the blog and doubled the fine while increasing the length of applicable time to up to 90 days. On April 4, 2017, ASMMP filed a further request for relief when Blog do Nélio once again posted new content relating to the Public Ministry. ASSMP asked that the court suspend the operation of the site by shutting down access within 2 days of the order or face imprisonment. When the court granted ASSMP’s request, Brandão filed a constitutional claim against the court and all orders relating to the interference with Blog do Nélio.

Brandão argued that the material he posted on his site was not false and that news regarding the Public Ministry and how it used its budget was of public interest. Brandão referred to an earlier decision made by the Federal Supreme Court (“STF”) declaring the necessity of “prevent[ing] the state or any person from restricting journalist activity, [and] prevent[ing] any statutory body from practising censorship contrary to the role of the press” (ADPF nº 130/DF). In its response the 2nd Civil Court of Campo Grande argued that emergency orders did not violate ADPF nº 130/DF. The 2nd Civil Court judge in charge argued that freedom of the press should not hinder personal rights, in this case the rights of the Public Ministry members not to be defamed, and that the court’s actions were appropriate in light of Brandão being in contempt of court.

STF only accepted Brandão’s constitutional claim relating to the lower court’s order of the April 4, 2017, requiring Brandão to shut down Blog do Nélio because the first two orders had been appealed out of time.

Decision Overview

On May 3, 2017, STF released its opinion on Brandão’s constitutional claim. Justice Dias Toffoli wrote the opinion. The main issue before STF was if the April 4, 2017 order to shut down Blog do Nélio amounted to prior censorship and, therefore, violated the freedom of the press.

Freedom of the press was defined in the the STF’s  case, ADPF nº 130/DF, which declared the former “Press Act” unconstitutional for violating Article 220 of the Brazilian Constitution that guarantees freedom of expression. ADPF nº 130/DF was a landmark decision that established the full extent of freedom of the press. The decision stated that no kind of prior censorship or constraint on the exercise of the freedom of the press was permitted, subject to some limitations. One limitation is speech that unjustly violates the personal rights of others, such as defamatory speech and libel. However, in order for this limitation to be used to restrict the rights of the press, the court presiding over the matter cannot make a an order without examining the substantive facts of the case a posteriori.

J. Toffoli asserted that Brandão’s claim was protected by the freedom of social communication guaranteed by Article 220.  J. Toffoli found that the 2nd Civil Court of Campo Grande’s order to shut down Blog do Nélio was an unconstitutional use of judicial power as it unjustly suppressed freedom of the press. Thus, the April 4, 2017 order violated the freedom of the press and was contrary to ADPF nº 130/DF and temporarily suspended.

Furthermore, J. Toffoli included language in his decision that acknowledged new age journalism (re internet-based blogs) as having the same freedom of the press rights more traditional media. By doing so,  J. Toffoli expanded the protections of the freedom of the press to an entirely new subset of journalism that is inclusive of the electronic spread of information.

J. Toffoli ordered the suspension of April 4, 2017 order by the 2nd Civil Court of Campo Grande until such a time as STF made a final decision on the matter.