Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Contracts Expression
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The Brazilian Supreme Court found that referring to someone as a “bandit” without providing any evidence of criminal behavior constituted libel. The case had come about as a result of a blog which had published a picture of a journalist alongside two prominent politicians, including a presidential candidate, and labeled the journalist a “bandit journalist” who was “in cahoots” with politicians. The Supreme Court held that this was an abuse of the right to freedom of expression.
On May 7, 2012, Mr. Amorim published a blog that opened with a picture of a journalist, side-by-side with two prominent politicians, including one who would later stand in the 2014 presidential elections. In the text that followed, Amorim accused Veja Magazine of using a well known mole to obtain information and material on certain politicians. According to Amorim, Mr. Pereira, on behalf of the magazine, argued that this relationship was legal. Amorim disagreed and ended the text with the phrase “(…) a bandit journalist is, in fact, bandit.”
Pereira filed a criminal complaint accusing Amorim of libel, requesting him to be convicted for what Pereira considered to be an abuse of the right to freedom of expression. The first instance court found in Pereira’s favor, and this was upheld at the Court of Appeals. Amorim appealed to the Supreme Court, alleging that the conviction infringed on Article 220, section I of the Brazilian Constitution, which protects freedom of communication. He argued that the phrase “bandit journalist” should be read in the context of the blog, and not on its own.
Justice Celso de Mello delivered the judgment of the Court, denying the appeal. Justice Celso de Mello found that the appeal raised no constitutional requisites to be admitted but, nonetheless, Justice Celso de Mello went on to explain the law of libel and the right to freedom of expression.
Justice Celso de Mello began by emphasizing that the Constitution expressly forbids State control of ideas, an area in which the State has neither the authority nor power to control. However, the right to freedom of expression is not an absolute right and is limited by both the rule of law and by ethics; any rule to the contrary would implicitly permit slander, libel, and defamation.
Justice Celso de Mello held that abuse of freedom of expression vis-a-vis individual rights must be curtailed. Individual rights are based on Articles 5th, X and 220, §1. of the Brazilian Constitution and Article 13(2) of the American Human Rights Convention, and include the right to dignity.
In the present case, it was clear to the Court that Amorim referred to Mr. Pereira as a bandit by the use of the phrase “(…) a bandit journalist is, fact, bandit,” and an image where the only journalist was Pereira. Critically, the Court held that contrary to what Amorim had argued, the phrase was dissonant from the text. The Court held that this revealed a conscious effort to offend Pereira, which was unnecessary: Amorim could have criticized the allegedly improper relationship between Veja Magazine and their sources of information without using Pereira’s picture along with the description as a “bandit”. This crossed the line from objective commentary and constituted the felony of slander.
Justice Celso de Mello cited to various American Supreme Court cases. He noted, in particular, Schenk v. United States, in which J. Oliver Wendell Holmes considered that the First Amendment did not protect a man shouting “fire” in a crowded theater, and Virginia v. Black et. al., in which the Supreme Court struck down a cross-burning statute.
Justice Celso de Mello furthermore emphasized earlier jurisprudence of the Brazilian Supreme Court which had held that the right to freedom of expression neither protects nor guards baseless accusations of criminality. He cited the Supreme Court’s decision in Habeas Corpus 82.424/RS which held that incitement to racism is not protected under the right to freedom of expression. He concluded that the right to freedom of expression cannot legitimize insults, defamation, libel or slander; to do so would legitimize morally offensive expressions that go beyond the freedom afforded to critics and journalists.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court affirmed that the right to freedom of expression is not absolute and that it may be restricted to protect the rights of others. Restrictions may be imposed under civil as well as under criminal law. The Court noted that the accusations made were a direct and conscious attempt to offend by accusing a journalist of criminal behavior which was not supported by the rest of the text of the blog. As such, this constituted an abuse of the right to freedom of expression which was not constitutionally protected.
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.
As a decision from the country’s highest Federal Court, this judgment is highly authoritative within Brazil.
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