Case Summary and Outcome
In 2009, Brazil’s Press Act, issued in 1967 under the governance of a military dictatorship, was found to be incompatible with the precepts of the Brazilian Constitution, which was written in 1988 after Brazil had become a democracy, and was therefore nullified.
The Democratic Labour Party (PDT) filed a complaint with Brazil’s Federal Supreme Court, alleging that Law No. 5250 (the Press Act) breached a fundamental precept of the Brazilian Constitution. The Press Act had been enacted in 1967 while Brazil was under the rule of a military regime, and PDT argued that it did not reflect the current Constitution, which had been enacted in 1988 after Brazil had become a democratic state. PDT sought to obtain an order recognizing the incompatibility of the Press Act with the Constitution.
The Supreme Federal Court of Brazil, in a session held with all its members, declared that the Press Act, as a whole, was not received by the Constitution and ruled that the freedoms of thought, creation, expression, information, and press, as established by the Constitution, do not admit any restriction and are not submitted to any other restraints other than the ones present in the Constitution itself.
The Court also concluded that the Constitution prohibits any restrictions on the freedom of thought and to the free circulation of news and information, so that the right to reply and the system of liabilities in civil, penal, and administrative instances are to be guaranteed only as consequences to the exercise of these rights. The Court further determined that any compensation due as a result of the exercise of the right to freedom of the press is required to be proportional with the offense and with the concrete situation of the victim in order to prevent the payment of compensation from becoming a form of censorship. The affordability rule is to be applied with more vigor to public agents who, due to their activity, are subjected to broad publicity of their acts.
The Court ruled that there is a relationship of mutual dependence between freedom of the press and democracy. Therefore, the pluralism that characterizes democratic regimes must be guaranteed to the press. Critics are benefited with the same guarantees as thoughts and information, since the press operates as a natural instance for the construction of public opinion and as an alternative for the official version of facts.
The Court held that any form of censorship is prohibited and found that the state can only legislate on the matter of the press laterally, observing the subjects established in the Constitution itself, such as the right to reply and of compensation, proportional with the offense, the protection of the source, and the liability due to defamation, among others.